S. R. Singh, J. - (1.) THE Writ petition is directed against an order of eviction of the petitioner from ground floor of premises No. 161 situate la Mohalla Sabungram Kasba Mauranipur, district Jhansi passed by the Prescribed Authority/Munsif, Mauranipur on 3-5-1991 under Section 21 of the U. P. Act No. 13 of 1972 which order was maintained by the appellate order dated 30-4-1992.
(2.) THE respondent landlord, Ram Sahai applied for eviction of the tenant petitioner from the premises in dispute and for release of the same in his favour on the ground that he bona fide required the premises in dispute for himself and for members of his family, in view of the facts and circumstances stated in paragraphs 3 and 4 of the release application From the tenor of the application it appears that the landlord wanted the premises in dispute for the purposes of his son, Harish Chandra, who, as alleged in the application, was married recently. It was also alleged in the release application that the tenant-petitioner had got constructed a big house in Mohalla Bajpaipura. Where he has already shifted and is residing along with his family members. The petitioner contested the release application on the ground thai the need of the landlord was not bona fide and that he would suffer greater hardship in the event of release application being allowed. It was stated in the written statement that he had been in occupation of ground floor of house no 16 /1 together with its front portion as well as first floor of the building on a monthly rent of Rs. 40/- for the ground floor and its front portion and Rs 30/- for the first floor of the building. It was alleged in the written statement that the petitioner had taken ground floor of the building for the purposes of doing business of 'dhaga' (sut) and he used the ground floor as shop and godown. while the first floor of the building was taken by him for residential purposes. It was alleged that the petitioner had been doing 'dhaga' business for the last 15-16 years and the respondeat landlord never objected to the ground floor from being used by the petitioner for business purposes. It was also alleged that after the petitioner, constructed bis house he shifited therein and vacated the first floor of the; building, which was subsequently let out by the respondent landlord to one Rajendra Prasad Dubey, even though the marriage of his son Harish Chandra had already taken place and thus it was suggested that if the need of landlord's son was bona fide, he would not have let out the first floor of the building to Rajendra Prasad Dubey. The Prescribed Authority upon consideration of the evidence on record and the facts and circumstances of the case, held that the respondent landlord did not bona fide require the premises in dispute either for himself or for any member of his family but it allowed the release application on the ground that the tenant petitioner having constructed his own house in the same town was not entitled to raise any objection to the release application and has objection was not entertainable in view of Explanation (I) to Section 21 (1) of the U. P. Act No. 13 of 1972 which provides that in case of a residential building, where the tenant or any member of this family who has been normally residing with or is wholly dependent on him, has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained. The petitioner preferred an appeal under Section 22 of the U. P. Act No. 13 of 1972 against the aforesaid order passed by the Prescribed Authority. The Learned Special Judge reversed the finding of the Prescribed. Authority on the question of bona fide need of the respondent landlord and held that the need of the respondent landlord was genuine and not malafide one. The appellate authority, however upheld the view taken by the Prescribed Authority that in the facts and circumstances of the case objection filed by the petitioner against the release application was not liable to be entertained in view of Explanation (I) to Section 21 (1) of the Act. The appeal was accordingly dismissed by the appellate authority vide judgment and order dated 30-4-1992.
(3.) SRI Shashi Nandan, learned counsel for the petitioner urged that the appellate authority was not justified in reversing the finding recorded by the Prescribed Authority on the question of bona fide need in absence of any cross objection. SRI G. N. Verma. Learned Counsel for the respondent landlord, on the other hand, urged that the appellate authority was competent to reverse the finding of the Prescribed Authority on the question of bona - fide need of the landlord even in absence of a cross objection. He placed reliance upon Order 4 rule 24 of the Code of Civil Procedure read with Section 38 of the Act and urged that the provisions contained in Order 41 rule 24 of the Code of Civil Procedure enabled the appellate authority to pronounce a correct judgment, on the basis of material before It, on the questions relating to bonafide need of the respondent landlord. Having considered the sub-missons made by the learned counsel appearing for the parties, I am of the opinion that although the provisions contained in Order 41 Rule 24 of the Code of Civil Procedure and Section 38 of the U. P. Act No 13 of 1992, reliance on which was placed by Sri C N. Verma learned counsel for the respondent landlord, are not attracted, but in my opinion the appellate authority did have the power to reverse the finding of the Prescribed Authority on the question of bona fide need even in absence of a cross objection. This power is conferred upon the appellate authority not by virtue of Order 41 rule 24 of the Code of Civil Procedure and Section 38 of the Act, but toy virtue of Section 34 of the Act read With Order 41 rule 22 of the Code of Civil Procedure. According to Section 34 of the Act the appellate Authority, while deciding the appeal under Section 22 of the Act, is supposed to have the "same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908. Thus the powers which are vetted in the appellate court under Order 41 rule 22 of the Code of Civil Procedure are exercisable by an appellate authority while deciding an appeal under Sec. 22 of the Act.;