R.R.K.TRIVEDI,J. - (1.) IN this writ petition, counter and rejoinder affidavits have been filed and both the learned Counsel are agreed that the writ petition may be decided finally at this stage.
(2.) FACTS giving rise to this writ petition are that the respondent No. 3 Smt. Kamla Devi filed an application under Section 21(1) of U.P. Act No. 13 of 1972 for release of the accommodation in dispute i.e. house No. 119/124-B Darshanpurwa, Bombay Road, Kanpur city. The entire first floor is in the tenancy of the petitioner which consisted of two rooms, latrine, bath room, kitchen, one courtyard and a Chhajja. The ground floor accommodation is admittedly in possession of the landlady, respondent No. 3. The application was contested by petitioner and it was stated that the house No. 86/33 of Deputy Ka Paraw, Kanpur city is in possession of respondent No. 3 and his family is still residing there and she has no bonafide need of the accommodation in dispute. The Prescribed Authority, Kanpur Nagar by its order dated 6th May, 1988 allowed the application for release of the accommodation in dispute i.e. first floor of house No. 119/124-B, Darshanpurwa, Bombay Road, Kanpur city. The application was filed against father of petitioner; late Shri Nepal Chandra Mathur who filed an appeal against the order of the Prescribed Authority. Before the appellate authority, an application was filed for admitting additional evidence which was allowed by the appellate authority vide order dated 10th December, 1990, which is Annexure-15 to the writ petition. It may be relevant at this stage to mention that documents which were admitted as additional evidence included affidavits of Ram Chandra and Krishna Kumar Gupta filed before the Rent Control and Eviction Officer which are Annexures-9 and 10 respectively. Krishna Kumar Gupta is son of respondent No. 3 Smt. Kamla Devi and Ram Chandra Gupta is owner of House No. 86/33, Deputy Ka Paraw. In both these affidavits it was categorically stated that Krishna Kumar Gupta son of respondent No. 3 is still residing in house No. 86/33 as before. In para 5 of his affidavit Krishna Kumar Gupta stated that he is residing in house No. 86/33 alongwith his wife, two sons, two brothers (Pawan Kumar and Vipin Kumar) and sister Roop Devi. He also in his affidavit mentioned about his Ration Card regarding 7 units who were residing in the house with him. The Prescribed Authority had concluded that the house No. 86/33 was vacated by respondent No. 3 and it cannot be taken into account as accommodation in her possession. Additional evidence was filed by the petitioner to meet this finding. Learned Counsel for the petitioner submitted that the appellate authority while dismissing the appeal of petitioner vide order dated 2nd July, 1991 failed to record any finding taking into account the additional evidence filed by petitioner which was admitted on record. It has been further submitted that the appellate authority committed serious error of law in taking the view that since respondent No. 3 has purchased the house and has also got possession on the part of the same, house No. 86/33 shall be deemed to be vacant under the provisions of Section 12(3) of the Act and it cannot be taken into consideration for bonafide need. Learned Counsel submitted that the appellate authority ought to have recorded a positive finding as to whether or not respondent No. 3 continued in actual possession and control of house No. 86/33 either herself or through her sons and in absence of such a finding the need set up by the respondent No. 3 cannot be correctly determined.
(3.) LEARNED Counsel for the respondents, on the other hand, submitted that there was no question of possession of respondent No. 3 in house No. 86/33 which was already vacated by her in October, 1984. Learned Counsel has relied on the affidavits of owner of the house No. 86/33 and of Krishna Kumar Gupta filed in the present proceedings.;