R.M.Sahai, J. - (1.) IN this tenants' petition two questions arise for consideration whether the appellate authority could, while allowing the application under Section 21(1)(a) in respect of non -residential building used for business purposes, have bifurcated the premises and second even if the order suffers from error of law should this Court interfere though justice has been done between parties. Admittedly petitioner carries on grocery shop. The application for release was filed as opposite party was about to retire and one of his sons was unemployed. It was claimed that both of them shall carry on business in the shop released. Both prescribed and appellate authority have found that need of opposite party was genuine and bona fide. The finding is based on material on record. It is a finding of fact which cannot be interfered by this Court. Learned counsel despite lengthy arguments failed to satisfy that the finding suffers from any error of law or fact.
(2.) ON comparative hardship, the two authorities however differed. Prescribed Authority held that petitioner's father was carrying on business since last forty years. He died recently and now the business was carried on by petitioner and her son. They have no source of income and in case the shop is released they shall die of starvation whereas for opposite party it shall mean only convenient and comfortable living. It was not endorsed by Appellate Authority. He held that need of opposite party was not only genuine but he needed a place where his son could carry on business as he had a right to earn his living. Further offer was made by opposite party in writing that petitioners may retain one portion of their choice and release the other in favour of opposite party. The Appellate Authority held that out of two rooms if one in the back is released petitioner's business shall not suffer whereas need of opposite party shall also be satisfied. It is by this partial release that the tenant is aggrieved. What is urged is that unlike residential building premises used for commercial purposes could not be bifurcated nor release could be ordered of a portion of it. Either release the whole or reject the application is the crux of the argument. Building is defined in sub -clause (i) of Section 2 to mean a residential or non -residential roofed structure. Section 21 entitles a landlord to file an application for eviction of a tenant from the building under tenancy or any specified portion thereof. No distinction has been made between commercial or residential and non -residential building either in the definition or for purposes of release. A landlord could file application for release of entire building or any specified portion, irrespective of whether the building was used for residential or business purposes. But once an application for release is made either of the entire building or any specified portion the question is whether the authorities could release only a portion. In respect of residential building there is a specific provision in clause (d) of sub -rule (1) to Rule 16 empowering authorities to release only a part if the need of Landlord was satisfied by that. But sub -rule (1) has been confined to residential building only. It does not apply to non -residential building, let out for purposes of any business. Argument of learned counsel for opposite -party that use of word 'also' in sub -rule (d) indicates that circumstances mentioned under it are not exhaustive therefore the guideline provided in sub -rule (1) for residential building could be taken into account while comparing hardship of commercial accommodation cannot be accepted as word also has been used in sub -rule (1) as well. Comparison of hardship of Landlord and tenant cannot be regulated with mathematical precision. It has to vary from case to case. But to serve as guideline various factors have been enumerated in the sub -rules (1) and (2). They, obviously, are not exhaustive. That is why the word 'also' has been used in both sub -rules.
(3.) TO this extent there may be substance in submission of learned counsel for petitioner, but as on the facts substantial justice appears to have been done between parties, it is not necessary to decide the legal submission further. From the map it is apparent that the accommodation in possession of tenant consists of one room 11' x 8' in back, one 5' x 8' in the front facing the road. In front of this room there is a platform 1. '6 " x 8'. attached to this front room and platform is open nazul land 19' 3 " x 8' on right side facing the road of which petitioner is lessee and is used for business purposes. Platform is used for sale of articles. Room in the back is used for store, it opens on side in a lane. This has been released in favour of Landlord. From this it would be apparent that accommodation which remains with petitioner along with Nazul land of which she is lessee is more than sufficient for the grocery business which she is carrying on. It shall save her from starvation at the same time enable opposite party also to earn his living. Without store room petitioner shall certainly be inconvenienced but earn and let others earn. In the result this petition fails and is dismissed but there shall be no order as to costs.;