- (1.) A ? clash of interest between the landlord and the tenant in connection with shop of the dimension 7 ft. x 9 ft situate in Mohalla Saidwara, Etawah is the cause involved in this writ petition.
(2.) THE respondent landlord wants the shop to be vacated whereas the petitioner-tenant insists for remaining in its possession on the ground that he has acquired sufficient goodwill as? tenant since 1960 and that the need set up by the landlord is not genuine and bona fide. It is worth noting that the respondent-landlord is a Homeopathic Medical Practitioner.? He was the owner and landlord of the shop in dispute. He had sold the shop some time in the year 1980 and had repurchased it in the year 1990. The fact that the respondent is presently the owner and landlord of the shop in question is not dispute. The respondent-landlord had earlier applied under Section 12/16 of U.P. Act No.13 of 1972 for declaring the shop to be vacant and for its release in his favour for residential purposes. He was unsuccessful in the said litigation. He could not even succeed in a suit for arrears of rent and eviction. It is thereafter that he filed the present release application under Section 21(1)(a) of the Act for the need of his younger son Mobine. The said release application on contest by the petitioner-tenant has been allowed by the prescribed and the order of release has been affirmed by the appellate authority as well. I have heard Sri Anoop Trivedi, learned counsel for the petitioner and Sri S. Ashraf Ali, learned counsel appearing for the respondent-landlord. Three arguments have been advanced on behalf of the petitioner. First the need of the landlord as set up is not bona fide in view of the previous litigation between the parties.? The second argument is that the respondent-landlord has sold one of his shops in the year 1999 and has let out the other one in favour of one Chandan Verma, after getting it vacated from the previous tenant. Lastly; it has also been submitted that the courts below have failed to evolve the comparative hardship of the parties and the suitability of the alternative accommodation has not been properly dealt with. It is admitted that the respondent is the owner and land-lord of the shop in question and that the petitioner is a tenant therein on a rent of Rs. 60/- per month. The younger son of the respondent land-lord is High School fail and is unemployed.?
(3.) THE previous litigation for the vacation of the petitioner tenant on the ground of default in payment of rent is of no consequence. The said litigation in no way bars his claim for getting the shop in question released under Section 21(1) (a) of the Act. The proceedings for declaring the shop to be vacant and for its release under Section 16 of the Act for residential purpose would not come in the way of the? present release proceedings under Section 21 (1) (a) of the Act. First, the earlier release of the shop in question was applied on the ground of residential use. Secondly, such a release could not have been considered unless there was vacancy in respect of the shop. Thus, the finding on the above aspect recorded by the courts below can not be said to be illegal. The respondent land-lord acquired a shop situate at Mohalla Navrangabad in a suit for partition and the said shop was sold by him vide sale deed dated 8.6.1999 to one Abhai Ram. The sale of the said shop by the respondent land-lord in no way proves that his need set up in the present release application is not genuine or bona-fide. The present release application was filed by the respondent land-lord in the year 2005 whereas the above shop was soled by him in the year 1999. There is nothing on record even to show that the said shop had ever come in possession of the respondent land-lord in a vacant state. Moreover, the said shop was sold by the respondent land-lord to solemnize the marriages of his two daughters which took place in November 1999.;