S.U. Khan, J. - (1.) THIS writ petition was earlier allowed ex -parte by me by judgment and order dated 17.7.2003, as at that time tenant/respondent had not appeared. Thereafter on behalf of tenant/respondent restoration application was filed on 22.8.2003. On 16.10.2003. I heard learned Counsel for the parties on restoration as well as on merit of the writ petition and reserved the judgment. Cause shown in the restoration application is sufficient. Restoration (Recall) Application No. 143417 is allowed. Judgment dated 17.7.2003 allowing the writ petition is set aside.
(2.) THIS writ petition has been filed by the landlord whose release application under section 21 of U.P. Act No. 13 of 1972 numbered as P.A. Case No. 22 of 1995 was allowed by Prescribed Authority, Chandausi (Moradabad) by order dated 23.4.1998, however, the said judgment was reversed in appeal (Rent Appeal No. 23 of 1998) by Additional District Judge, Court No. 9, Moradabad through judgment and older dated 15.5.2001. In my earlier judgment dated 17.7.2003 I held that even though landlord had good income from several sources like agricultural land, grove and rental income from a big hall called Utsav Bhavan (which was booked occasionally for special functions), still his need to establish a business which could keep him engaged was bonafide. Part of para 6 of my earlier judgment is quoted below: Normally a person needs business/occupation firstly for income and secondly for keeping him busy. It is interesting to note that the word business is derived from the word busy hence; to keep busy is an essential ingredient of business. There is nothing wrung if a person having good income without much activity intends to start some other business in order to augment his income and keep himself busy. In such situation the need can be quite bonafide.
(3.) LEARNED Counsel for landlord/petitioner further pointed out that before the Court below an invitation card sent to various invitees by the tenant regarding a marriage in his family was filed. Copy of this card is annexed to the writ petition as Annexure -4 on page 54. In the said card it was shown that the tenant owned several business carried out from different premises i.e. M/s. Gopal Traders, Phadiyai Bazar, Y.J. Chemicals, Sita Road, Chandausi; Bala Ji Cold Storage, Vill. -Pathara, Chandausi; Kallu Halwai, Brahm Bazar and Kallu Halwai (Dairy Farm), Sita Road, Chandausi. According to the learned Counsel for the petitioner this clearly established that tenant was a rich person having several businesses. Learned Counsel for the tenant/respondent has not denied this fact. The entire argument of learned Counsel for tenant/respondent is that landlord was having good income from several sources hence his need was not bonafide and in case need of the landlord is not bonafide then it is immaterial that tenant is doing business at several places. In my opinion the argument is not correct. Existence of need and gravity of need are two different things. As the landlord was not doing any such business which could keep him engaged, hence his need to start such business was real and bonafide (landlord asserted that he intends to start the business of selling furniture from the shop in dispute). The Supreme Court in : AIR 2003 SC 2713 has held that "degree of necessity" falls in the realm of comparative hardship. In the instant case as admittedly the tenant is having several types of businesses hence, the balance of hardship is heavily loaded in favour of the landlord.;