S.U.KHAN, J. - (1.) THIS is tenant's writ petition arising out of eviction/release proceedings initiated by landlady respondent No. 1 under Section 21 of U.P. Act No. 13 of 1972 against the petitioner.
(2.) PROPERTY in dispute is a shop. The landlady initially pleaded that after the death of her husband (which occurred about 9 years before the filing of the release application), her three sons respondent opposite parties Nos. 2 to 4 did not look after her properly, hence she needed the shop in dispute to start business of selling sundry goods (purchune shop). In release application it was pointed out that other commercial accommodation were available to the tenant and were in his occupation and use. The release application being Rent Case No. 1 of 1989 was dismissed by IVth Additional Chief Metropolitan Magistrate, Kanpur Nagar/Prescribed Authority, through judgment and order dated 26.11.1996. The prescribed authority held the need not to be bonafide. The prescribed authority refused to decide the question of comparative hardship on the ground that release application was liable to be dismissed on the ground of absence of bonafide need, hence there was no necessity to decide the question of comparative hardship. The landlady respondent No. 1 filed appeal against the aforesaid judgment and order of the prescribed authority, which was numbered as Rent Appeal No. 5 of 1997 and was transferred for disposal before the VIIIth Additional District Judge, Kanpur Nagar. Before the appellate authority, tenant filed some additional evidence and in rebuttal thereof landlady also adduced evidence. The tenant asserted in his affidavit before the lower court that landlady had suffered Paralytic stroke, hence she became wholly unfit for doing any business. The landlady in rebuttal filed an affidavit stating therein that she would carry on business with the help of her two grandsons. In the initial release application, there was no such averment. However, by adducing additional evidence in the appeal the tenant provided her an opportunity, which she availed. Now it is no more open to the tenant to say that in the absence of pleadings, the said averment of the landlady shall not be taken into consideration. After the averment that landlady Intended to carry on business with the help of her grandsons, taking into consideration the need of the grandsons also was quite permissible. It has been stated in the affidavit filed by the landlady before the lower appellate court that the said grandsons are aged about 20 to 23 years and are not doing any job. Grandsons are included in the definition of the family given in Section 3(g)(ii) (Male Lineal Descendants). With regard to Paralytic stroke, the landlady stated that she had recovered and was capable of doing normal physical work.
(3.) IT was also argued by the learned counsel for the tenant before the tower appellate court as well as this Court that two shops belonging to the landlady and his sons were let out to other tenants during the pendency of the case, hence it disproved the need of the landlady. The lower appellate court in this regard accepted the version of the landlady that by mutual understanding those two shops were in control of his two sons who let those shops and did not allow the landlady to start business in the said shops.;