- (1.) S. U. Khan, J. List revised. No one is present for the respondent. Heard learned Counsel for the petitioner.
(2.) THIS is landlady's writ petition. Landlady-petitioner filed release application under Section 21 of U. P. Act No. 13 of 1972 against tenant Khem Chand initial respondent No. 3. Since deceased and survived by legal representatives. The property in dispute is a shop. In the release application the need set up was for the nephew of the landlady which according to the landlady was residing with her as a family member. The release application, registered as Misc. Application No. 42 of 1985 was heard and decided by Prescribed Authority/munsif, Court No. 4, Jhansi. The case set up by the landlady was that she has no son and she intended to start business of motor part in the shop in dispute and that the business would be run by her sister's son Hari Kishan for himself and for the landlady. The precise case was that out of the profit of the shop landlady as well as Hari Krishan both would be benefited. In the affidavit filed by the landlady before the Prescribed Authority, copy of which is Annexure-8 to the Writ Petition, it was stated in paragraph-8 that Hari Krishan since his childhood was residing with the landlady and he was almost a foster son of the landlady. Prescribed Authority allowed the release application by judgment and order dated 25-5-1984. Tenant Khem Chand filed an appeal against the same being Rent Control Appeal No. 28 of 1984. The appeal was allowed by the VIth A. D. J. , Jhansi through judgment dated 6-2- 1985. The lower Appellate Court held that the application was not maintainable for the need of sister's son of the landlady. Lower Appellate Court also held that the balance of comparative hardship lay in favour of the tenant. In my opinion release application was maintainable for two reasons. Firstly landlady had stated that she was not having any son and Hari Krishna was her sister's son was like her foster son. For the need of such person release application is quite maintainable as held in AIR 1997 SC 628. Secondly, landlady had asserted that she would also be benefiting out of the income from the business which would be carried out from the shop in dispute by Hari Krishna. This clearly amounted to direct need of the landlady. As far as comparative hardship is concerned, nothing has been brought on record as to what efforts were made by the tenant to arrange for alternative shop since the filing of release application. This is sufficient to tilt the balance of comparative hardship in favour of the landlady.
(3.) ACCORDINGLY, writ petition is allowed. Judgment and order dated 6-2-1985 passed by Appellate Court is set aside and that of the trial Court/prescribed Authority is restored. As no one has appeared for tenant/respondent hence no order on execution application under Section 23 of U. P. Act No. 13 of 1972 which may be filed by landlady should be passed without issuing and serving of notice on tenants. Petition allowed. .;