- (1.) S. U. Khan, J. This is landlord's writ petition arising out of eviction/release proceedings initiated by him against the tenant- respondent under Section 21 of U. P. Act No. 13 of 1972 regarding the house in dispute of which the contesting respondent is tenant and petitioner is landlord.
(2.) THE release application was registered as Case No. 27 of 1977 and was allowed on 23-12-1980 by Prescribed Authority Hathras. Initially, release application was rejected on 31-1-1979 by Prescribed Authority. On the appeal of the landlord the appellate Court/v Additional District Judge, Aligarh by judgment and order dated 8-2-1980, reversed the said judgment and order and remanded the matter to the Prescribed Authority for reconsideration only for considering as to whether explanation (i) to Section 21 (1) was attracted or not and if not then comparative hardship of the parties must be considered. THE landlord had pointed out five accommodations belonging and available to the tenant. THE tenant had countered the said allegations by stating that alternative accommodations pointed out by the landlord were either commercial buildings or open land belonging to a firm of which the tenant was a partner, that the third property was a small house in which goods of the factory were stored and it was used as godown and the fifth property was only a room on the top storey and was in tenancy of the firm and was used as rest house, guest house for the agents of the firm and other persons. THE Prescribed Authority held that defendant had several properties available to him and his assertion that all these properties were being used for manufacturing/storing the medicines, was not believable. For this finding reliance was placed upon Drug Licence of the petitioner. THE trial Court, therefore, on 23 12. 1980 allowed the release application. THE tenant-respondent filed appeal against the aforesaid judgment and order. THE appeal (U. P. U. B. ). Appeal No. 4 of 1981) was allowed by 1st Additional District Judge, Aligarh, through judgment and order dated 6-11-1981 (Annexure 1 to this writ petition ). This writ petition is directed against the aforesaid judgment and order of the Lower Appellate Court. The Lower Appellate Court mentioned that only those 5 properties are to be considered which are mentioned in the affidavit filed on behalf of the landlord as paper No. 15-Ga. Regarding property Nos. 1 and 2 in the said affidavit, the appellate Court held that they were acquired by the tenant about three months before start of tenancy, hence they could not be taken into consideration for the purpose of Explanation (i ). In my opinion the approach of the Appellate Court regarding those properties was not correct. Even if those (properties cannot be taken into consideration for the purposes of the said Explanation still availability of those accommodations would strongly tilt the balance of comparative hardship in favour of the landlord and against the petitioner. Regarding third property, allegation of the landlord was that during the pendency of the proceedings the tenant constructed three-storied building on the open land and one of the sons of the tenant started residing therein and the building was constructed by the mother of the tenant and one of the partner of the firm. The tenant denied that any of his family members was residing in the said building. The Lower Appellate Court held that from the affidavit of the tenant it appeared that the building was being used primarily for the purposes of the firm and no one was residing therein and premises were on rent with the firm and that tablets' manufacturing machine was installed therein. The appellate Court further held that "it seems that the premises are being used for the purposes of the firm. This building can not therefore be taken into account in connection with the Explanation (i) of Section 21 of the Act because this building is not in possession of the tenant but is in possession of the firm and is being utilized for the purposes of the firm. "
(3.) REGARDING this property also the view of the Appellate Court is erroneous in law. If the building which can be used as the residential building is given by the tenant on rent to him of which he is also partner, then the aforesaid Explanation is squarely attracted. Even in the absence of the said Explanation this fact heavily favours the landlord in the matter of comparison of hardship. Regarding bona fide need (which has strangely been considered by the Lower Appellate Court after discussion of comparative hardships), the Lower Appellate Court has held that the need set up in the release application by the landlord to the effect that the terms between two of his sons were not good and therefore, he required the premises to shift one of his sons was not bona fide but only whim. It was also noted by Appellate Court that the fact, that accommodation in possession of the landlord was insufficient for the need of his growing family was introduced after remand. On this count also Lower Appellate Court was not correct, firstly the amendment relates back to the date of filing of the initial application and secondly absence of good terms between two brothers is bona fide ground for their separate residences. In this regard reference may be made to AIR 2001 SC 3806.;