- (1.) Heard Sri S.M.N. Bokhari, learned counsel for the petitioner and Sri A.N. Sinha, learned counsel for the respondents. The petitioner Haji Ehsan Elahi initiated proceedings for release of house No. 88/414 Chamanganj Kanpur on the ground of personal need by filing application under Section 21(1)(a) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") alleging that he is owner of suit property and opposite parties/respondents No. 2 and 3 Sri Abdul Lateef and Anwar Ahmad are tenants in respect to the portion of house at ground floor which included three rooms, one verandah, one Courtyard and one bathroom, one kitchen and one latrine. It was registered as Rent Case No. 39 of 1988 before Prescribed Authority.
(2.) The application was contested by respondents No. 2 and 3. The Prescribed Authority/4th Addl. Civil Judge, vide judgment and order dated 19.7.1989 allowed the application directing tenants to hand over vacant possession of property in dispute to the petitioner. The tenants took up the matter in appeal i.e. Rent Appeal No. 116/89 which was also dismissed by appellate Court i.e. Special Judge (E.C. Act) vide judgment dated 11.9.1991.
(3.) The appellate judgment show that counsel for appellant absented on the date of hearing and thereafter appeal was decided after hearing counsel for the respondent therein i.e. petitioner in this case. A recall application was filed by tenants i.e. respondents No. 2 and 3 which was also rejected by appellate Court on 29.5.1992 whereafter the matter was taken to this Court in writ petition No. 24545 of 1992. It was allowed vide judgment dated 8.2.1993 and both the orders passed by appellate Court i.e. 11.9.1991 and 29.5.1993 were quashed. The relevant extract of judgment of this Court is as under: In my opinion, the view taken by the appellate authority is wholly unjustified and against the provisions of Act. Since the Prescribed Authority accepted the contention of petitioners that the landlord did not disclose the existence of two rooms which were available to him, the question was worth consideration by appellate authority. There were already three rooms with the landlord and if two rooms pointed out by the petitioners also taken into account, five rooms became available to him and it required to see as to whether family could be accommodated. The appellate authority could not ignore this vital question. Even after the bona fide and genuine need of the landlord is accepted, release may be refused in case greater hardship likely to be caused to the tenant in allowing the application as clear from the provision 4 to Section 21 (1) of the Act. Further it is also clear that the appeal could not be argued on behalf of the petitioners as petitioner No. 1 had fallen ill who was doing pairvi. Application for recall of the order has been rejected on the ground that the medical certificate did not give adequate details about the ailment. However, as the main order of the appellate authority has been found to be erroneous in law, it does not appear necessary to go into details, and this order is also being quashed in the interest of justice, it is a fit case where the case should be remanded for deciding a fresh by appellate authority. For the reasons recorded above, this writ petition is allowed. The orders dated 11th September 1991 (Annexure 5) and order dated 29th May, 1992 (Annexure 7) passed by Special Judge (E.C. Act) Kanpur Nagar, respondent No. 1 in Rent Appeal No. 116 of 1989 are hereby quashed. The appeal shall stand restored to its original number. The appellate authority shall decide the appeal after hearing parties in accordance with law a fresh. There will be no order as to costs.;