Sibghat Ullah Khan, J. - (1.) HEARD learned Counsel for the parties. First Writ Petition:
(2.) IN this writ petition several supplementary affidavits were filed and at each occasion time for supplementary counter affidavit and then supplementary rejoinder affidavit was sought. Now the volume of the file is inversely proportional to the rent. Hence matter could not be heard earlier. This is tenant's writ petition arising out of proceedings for eviction/release initiated by landlord original Respondent No. 2 Smt. Vishnu Sharan Agarwal since deceased and survived by legal representatives in the form of P.A. Case No. 29 of 1982. Prescribed Authority, Chandausi District Mooradabad rejected the release application through order dated 28.05.1983. Property in dispute is a shop rent of which is Rs. 25/ - per month and original Petitioner was tenant thereof since 1947. Against the order of the Prescribed Authority original landlord filed R.C. Appeal No. 34 of 1983 which was allowed by VIII A.D.J. Mooradabad on 14.04.1986. Order of Prescribed Authority was set aside and release application was allowed.
(3.) THE need set up in the release application was for Mukesh Sharan son of the original landlord and now one of the Respondents after the death of the original landlord. Landlord alleged that he had 5 sons out of whom Mukesh Sharan was youngest and had completed his education. Tenant pleaded that mental condition of Mukesh Sharan was not good and he was not capable of doing business and that other shops were available to landlord. Mukesh Sharan had filed his own affidavit before the Prescribed authority on 07.11.1982. Tenant moved application for cross examination which was allowed and Mukesh Sharan was cross examined on 01.03.1983. At the end of the cross -examination Mukesh Sharan stated that he had not filed any affidavit. However, on the next day i.e. 02.03.1983 he filed an application stating therein that under some mistake and confusion he had stated that he had not filed any affidavit while in fact the affidavit had been filed by him. Said application was not disposed of by the Prescribed Authority. Mukesh Sharan on 15.05.1983 filed another affidavit stating therein about his need for the shop in dispute. The lower appellate Court held that Mukesh Sharan in his cross -examination had categorically stated he would do the business of electrical fittings and goods from the shop in dispute and that he had some experience of the same also. Lower appellate Court held that said oral statement was sufficient evidence. The tenant nowhere stated before the Courts below that Mukesh Sharan was having any other source of income or was employed anywhere. In this regard the only thing which was emphasised by the tenant was mental condition of the Mukesh Sharan. The lower appellate Court held that Mukesh Sharan was competent to do business. Regarding other property, the lower appellate Court held that no shop in vacant state was available to the landlord. Tenant was doing Halwai business from the shop in dispute.;