A.K.BANERJI,J. - (1.) BY means of this writ petition the petitioner who is a tenant of the disputed shop has challenged the order passed by the respondent No. 2 releasing the said shop in favour of the respondent-landlord. He has also challenged the order of the respondent No.1, dismissing the petitioner's appeal.
(2.) BRIEFLY stated the facts of the present case are that the respondent No.3 Kedar Nath filed an application under Section 21(1)(a) of the U.P. Act No. 13 of 1972 for release of the disputed shop on the ground of his personal need. It was stated in the application by the respondent No. 3 that the applicant as well as his brothers were living as a joint family after the death of their father Gulab Chand. However, in the year 1981, there was a partition between him and his brothers and their business has also been partitioned on account of which the applicant has been allotted the house in which the disputed shop is situate. He will have to vacate the shop in which he is doing his handloom business as the same has fallen in the share of his brothers. In the disputed shop the opposite parties are tenants for a quite long time but the opposite party No. 1 is employed in Kanpur and lives there with his family and does not require the shop at all. The opposite party No. 2 (petitioner) is not doing the business himself but getting it done through his servant and besides the opposite parties have another shop in front of the disputed shop of which too they are the tenants. It was pleaded that the opposite parties have no need of the present disputed shop and besides the nature of the business, is such that can be carried on also from their residence which is nearby. The tenant opposite parties (petitioner and the opposite party No. 7) filed separate written statements in which it was stated that the opposite parties were tenants of the shop in dispute since the time of their father. After the death of their father, they continued to remain tenants and after some time the opposite party No. 2 (the petitioner) separated and became the sole tenant of the disputed shop where he is doing separate business. It was denied that the need of the landlord was either genuine and bonafide. It was further denied that there was any partition in the family of landlord or that the disputed shop has come in the share of the opposite party No. 3. It was further pleaded that in the year 1972, there was an agreement between the father of the present landlords namely Gulab Chand and the petitioner and his brother Keshav Prasad (opposite party No. 7) in pursuance of which the tenant vacated the northern portion of the premises with this condition that they will not be evicted from the present shop in dispute. The petitioner (opposite party No. 2) also pleaded in the written statement that he has no connection with the other shop of which his brother Keshav Prasad is the tenant and that the nature of the business was such that it could not be carried from the residence of the petitioner which was quite a distance from the disputed shop. The petitioner further pleaded that the landlord does not need the disputed shop whereas if the release application is granted, the petitioner-tenant shall suffer irreparably as he has already earned good-will in the disputed shop and it will be impossible for him to get another alternative shop.
(3.) THE parties filed their affidavits and their documents before the respondent No. 2 in respect of their respective cases. The Prescribed Authority allowed the release application of the landlord respondent No. 3 on the finding that it is established from the record that there has been a partition in the family of the landlord and the need of the respondent No. 3 with regard to the disputed shop is genuine and bonafide. It was also held that the landlord-respondent will suffer greater hardship in case the disputed shop is not released in his favour as the landlord does not have any other shop to carry on his business whereas the tenants opposite parties own another shop. Mainly on these findings, the respondent No. 2 allowed the release application filed by the landlord-opposite party No. 3.;