R. C. Deo Sharma, J. - (1.) THE petitioner is a tenant of the ground-floor of house no. 67/120 situate at Bombay Wali Gali, Lal Kuan, Lucknow, since August. 1972, the landlord of the house being Ram Shanker Saksena. opposite party No. 3, who occupies the first floor of the house and has some accommodation in his possession on the ground-floor as well. He made an application for release of the ground-floor portion from the tenancy of the petitioner under Section 21 of the U. P. Act No. XIII of 1972 on the ground of personal need. After contest his application was allowed by the Prescribed Authority by an order dated 14-4-1983 (Annexure No. 2). THE petitioner preferred an appeal before the learned District Judge but the same was dismissed by the opposite-party No. 1 by his judgment and order dated 16-3-1984, Annexure No. 1 to the writ petition. Feeling aggrieved by the aforesaid two orders the petitioner has filed this writ petition under Article 226 of the Constitution praying that the said orders (Annexures Nos. 1 and 2) be quashed and the landlord, opposite party no. 3 be directed by a writ of mandamus not to interfere with the petitioner's . possession over the premises in his tenancy.
(2.) THE petitioner's contention mainly is that the landlord's family consisted of nine members at the time he had let out the premises in dispute in 1972 but the family was reduced because of the marriage of daughters etc. and now consisted of merely four members, namely, the landlord, his wife and two sons. It has also been alleged that the release application was filed under Section 21 (1) (b) of the said Act and that the petitioner had neither any other accommodation in Lucknow nor any alternate accommodation was offered by the landlord and that without properly appreciating the matter both the Courts below have held the need of the landlord as genuine and that comparative need of the parties has not been properly assessed. The landlord, opposite party no. 3 in his counter-affidavit denied that the application for release was made under Section 21 (1) (b) and asserted that it was made under Section 21 (1) (a) of the Act and that the petitioner had misrepresented facts by stating incorrectly the accommodation in the respective possession of the petitioner and the opposite-party no. 3 in the house in question. It was contended that the petitioner had in his possession another house being no. 298 in Moti Jheel Colony, Aish Bagh, Lucknow, and had actually shifted to those premises on 24-7-1983 itself and had planted others unauthorisedly in the premises in dispute. The land over which the said house in Moti Jheel Colony existed was said to stand in the name of petitioner's brother Kashi Prasad Dwivedi who was permanently residing in village Bannwan district Rae Bareli whereas the petitioner himself had built the house over the said land and shifted on 24-7-1983. It was denied that the eldest son of the landlord- opposite-party was living at Rae Bareli, the contention being that the said eldest son though in service at Rae Bareli was a daily passenger from Lucknow and held a Monthly Seasonal Ticket, a photo copy whereof was filed on record. A rejoinder affidavit and a supplementary rejoinder affidavit were filed on behalf of the petitioner reiterating his earlier contentions and stating that the description of the premises in the possession of the petitioner and the opposite-party no. 3 was not correctly given by the landlord-opposite-party and that the petitioner was willing to offer the" covered verandah in his possession to the opposite-party no. 3 even though the petitioner was hard pressed with the accomodation. It was denied that he had transferred the premises in his tenancy to any unauthorised person. I have heard learned counsel for the parties and have also gone through the record. There was some difference about the description of the property la the respective possession of the landlord and the tenant as will be apparent from the affidavits and counter-affidavit etc. filed by them but as a matter of fact the position is very clear from the plans of the first floor and the ground floor accommodation brought on record as Annexure No. 6 to the petition and Annexures Nos. 'H' and 1 to 6 the counter-affidavit filed by the landlord-opposite-party no. 3. The position as emerges is that the entire first floor accommodation is in the possession of the landlord and it consists of only two rooms 17'3" x 7'3" each. In addition there is a small kitchen and some open roof. On the ground floor the landlord has in his possession one latrine, one bath-room beside and verandah which is described by the tenant as covered verandah but it has been admitted that it is open towards south and is without a door etc. The landlord's contention was that this verandah is used by him for keeping cycles which cannot be taken up stairs and also for keeping firewood etc. As regards the tenant he has in his possession two comparatively smaller rooms besides a third room described as a store-room, a covered verandah besides kitchen, bath-room and latrine as also open court-yard and passage from the entrance upto the court yard. The tenant's suggestion that the landlord has a third room upstairs is clearly negatived by the fact that the so-called third room which is less than five feet in width is only a kitchen. The contention that the landlord can construct a kitchen on the open roof and utilise the present kitchen as a small room cannot be accepted.
(3.) THE learned counsel for the petitioner contended that the opposite parties Nos. 1 and 2 have not considered if part of the accommodation could be released from the possession of the tenant to satisfy the need of the landlord and that even without a plea being raised to this effect the courts should have taken this fact into consideration. Reference was made to Rule 16 (1) (d) of the Rules made under the U. P. Act No. XIII of 1972. It is true that normally the aforesaid point should also be taken into consideration but it may be observed that the tenant neither offered to vacate any part of the premises nor the landlord suggested that his purpose could be served if a particular part of the premises were released in bis favour. THE courts below have no doubt not specifically referred to Rule 16 (1) (d) but they have carefully considered the respective accommodation in the possession of the landlord and the tenant and have come to the conclusion that the landlord's requirement fully justified the release of the entire accommodation in the possession of the tenant. It may be indicated that the landlord has just two rooms in his possession besides the kitchen, bath-room, latrine and the verandah which are appurtenances necessary for the enjoyment of the premises and did not constitute any substantial living accommodation. For the first time in a rejoinder-affidavit dated 5-4-1984 filed in this Court the tenant stated in Para 14 that although he was in a tight position yet he jwas prepared to offer the covered verandah in his possession to the landlord- oppoosite- party no. 3. Obviously this offer was made much too late and only in view of the observations made in Para 22 of the judgment of the learned Addl. District Judge (Annexure-1). When the entire material is already before this Court the contention of the petitioner's learned counsel that the case should be remanded to court below cannot be accepted. As already indicated earlier the accommodation in the possession of the tenant is already much too short and depriving him of any living room will neither help the tenant nor the landlord. The landlord's requirement will also not be served even if one of the rooms is made available to him. As regards the offer for the covered verandah it is much too small and should normally be of the same measurement as the kitchen upstairs and which is about 4' 10" in width and about 8 feet in length. It was held in M/s. Ram Nath Export Pvt. Ltd., Agra v. Addl. District Judge, Agra, 1984 (1) ARC 397 that the remand of the case in the circumstance would not be justified and would only prolong the litigation unnecessarily when the entire material is already before this Court. Learned counsel for the petitioner placed reliance an J. S. Thind v. Special Judge, Economic Offences, Allahabad, 1984 (1) ARC 145 in support of the contention that in the circumstances Rule 16 (1) (d) should have been considered by the courts below. It has been observed in connection with the aforesaid case of Ram Nath Exports Pvt. Ltd. that looking to the circumstances of the case equities between the parties could be adjusted even in this Court if the nature of the accommodation in the possession of the parties justified it. A reference was also made to the case of Raj Rani Mehrotra v. Ilnd. Addl. District Judge, 1980 UP RCC 86 in support of the contention that even without raising a plea the court should consider the application of Rule 16(l)(d). Each case depends upon its own facts and is true that the matter should be considered by the court even without a plea being raised but in the instant case as already observed the very nature of the accommodation did not warrant release of any portion of the accmmodation in favour of the landlord. In Mohd. Asghar v. District Judge Saharanpur, 1981 UPRGC 380, it was held on the consideration of the facts of the particular case that the provisions of Rule 16 (1) (d) could not apply to the accmmodation in question. Thus each case depends upon its own facts and in the instant case looking to the accommodation and size of family of landlord and tenant there was' no question of release of part of the accommodation in favour of the landlord,;