S.U. Khan, J. - (1.) THIS is landlords writ petition. No one has appeared for tenant -respondent. Even though notices, were sent through courier and dasti also, tenant -respondent refused to accept the same. The report of the post -man is slightly confusing however, it appears that respondent No. 3 has also refused to accept the notice tendered by the post -man. In these circumstances service upon respondent is treated to be sufficient. Heard learned Counsel for the petitioners. Landlords filed release application under section 21 of U.P. Act No. 13 of 1972 against tenant -respondent, No. 3 being Case No. 44 of 1995. Through the release application eviction of tenant was sought from the shop in dispute. Landlords had pleaded that they were not doing any job and they intended to start their own business from the shop in dispute. Prescribed Authority/J.S.C.C., Gorakhpur allowed the release application through judgment and order dated 5.3.1998. Tenant -respondent filed an appeal against the said judgment being Misc. Appeal No. 3 of 1998. Additional District Judge, Court No. 7, Gorakhpur through judgment and order dated 10.10.2003 allowed the appeal. Hence, this writ petition.
(2.) LOWER Appellate Court took two grounds to allow the appeal. One was that landlords could not prove that they had sufficient means to start the business. This point is not tenable in view of Supreme Court authority reported in, (2002) SCC 610. The other point taken by the Lower Appellate Court was that there was another tenant in another shop on behalf of the same landlords who was paying good rent of Rs. 800/ - per month hence landlords should have filed release application against that tenant and not the respondent No. 3. It appears that respondent No. 3 is tenant at very inadequate rent. Learned Counsel for the petitioners -landlord has also stated that even the inadequate Rs. 38/ - per month is not being paid by the tenant -respondent No. 3. The landlords cannot be blamed for filing release application against tenant -respondent No. 3 instead of other tenant who is paying good rent. In any case this is the choice of the landlords as against which tenant must proceed for getting the building released. Apart from the above two points, I do not find any error in the judgment of the Trial Court. The judgment and order passed by the Trial Court was based upon material on record.
(3.) ACCORDINGLY , writ petition is allowed. Judgment and order passed by the Lower Appellate Court is set aside and that of the Trial Court/Prescribed Authority is restored. However, as no one has appeared for tenant -respondent No. 3, hence, before issuing writ of possession/parvana dakhal on the application which may be filed by the landlords -petitioners under section 23 of U.P. Act No. 13 of 1972 Prescribed Authority must ensure service upon respondent No. 3.;