R. M. Sahai, J. - (1.) AGGRIEVED by rejection of release application filed under section 21 of U. P. Act XIII of 1972, in appeal the landlord has filed this petition. While residing in a house inherited from his father petitioner purchased another house in 1975 and after lapse of statutory period applied for eviction of the tenant as it was needed bonafide by him and members of his family both for residence and the business of handloom carried on by them. The tenant disputed the claim both because of the hardship that he would suffer if he was evicted as it would amount to uprooting him from the business of weaving which he was carrying on with help of powerloom in premises which was the only source of livelihood of his family consisting of nine members. It was also alleged that petitioner was guilty of concealing the extent of accommodation in his possession only to obtain an order of eviction. Due to dispute about extent of accommodation a commission was sent and it has been found that the accommodation in possession of petitioner consisted of one room, One room of tiled roof and two inter connected rooms with handlooms installed in them. Apart from it the landlord has court-yard, bath, latrine and kitchen. Thus there is one room for living and two rooms for commercial purpose. And his family consists of four sons, three daughters his widowed mother and wife. Out of four sons, one son has been found to be residing in another portion of the same house. The accommodation in his possession has been found to be one room with tiled roof and court-yard at first floor, one varandah with power looms in ground-floor and one store room and another very small room with a boven machine. In yet another portion the appellate authority found that if the accommodation in possession of petitioner and one of his sons is taken into account then it was sufficient both for residence and commercial purposes. It was held that although it was stated that one of petitioner's son was residing separately but it was purposive as he being residing in same house, the accommodation was "split up to magnify paucity and plead necessity. The appellate authority did not find any merit in claim of petitioner that his brother was pressing him to vacate the house as he was residing in it in his own right, having inherited it from his father. Another circumstance which weighed with appellate authority was that a needy landlord would have made efforts to purchase a vacant rather than a tenanted accommodation. It was also found that hardship which tenant would suffer in case of allowing of petitioner's application would be much greater as his family of nine persons shall be rendered without bread and butter.
(2.) PRIMA facie the findings recorded by appellate authority are findings of fact but it has been demonstrated that in recording these findings either the appellate authority ignored evidence or took into account irrelevant circumstance which do render the finding infirm. For instance claim of petitioner that his son was residing independently in another portion from the time of his grand-father was rejected, as it was not supported by any evidence. But this is not correct as the claim of separate residence was stated on affidavit. It has not been examined. For whatever worth it was it could not have been ignored. In any case the appellate authority was under mis-apprehension that claim was not supported by any evidence. Moreover, the prescribed authority observed that in the application for release the petitioner did not include the necessity for the son. Therefore, it cannot be said that he was guilty of concealing any accommodation. Even assuming that the son was not living independently as has been found by appellate authority then he should have included the wife of the son etc. while considering sufficiency of accommodation for petitioner and his family. Not only this the appellate authority in observing that in case the landlord desired additional accommodation then he should have purchased vacant rather than tenanted accommodation took into irrelevent circumstance. Proviso (1) to Section 21 prevents a landlord from moving an application for three years from the date of purchase. Once the period expires the statutory bar is lifted and a tenant may succeed on lack of bonafide need or hard-ship but the application could not be rejected because the landlord purchased tenanted accommodation. In fact it was wholly irrelevant circumstance for deciding bonafide need within meaning of sub-section (1) of Section 21. Even on comparative hardship the finding is not well founded. Premises in dispute are being utilised by opposite party for commercial purposes. It has been held that in case application is allowed opposite party shall be put to starvation. But the appellate authority did not consider that it was lateron admitted to opposite party that he had purchased an area of 272 square yards in another locality. Although, it was claimed by him that despite the availability of this land he would suffer hardship but this was to be examined by appellate authority. It could not be ignored. In this court Sri S. N. Varma, a Senior Advocate of this Court appearing for petitioner offered to bear the expenses of getting tiled roof on that plot for convenience of opposite party. This again needs consideration by appellate authority.
(3.) WHILE defending the order passed by appellate authority Sri K. M. Dayal, learned counsel for opposite party produced Rent Control Acts of various States namely, Andhra Pradesh, Tripura, Tamil Nadu, Delhi, West Bengal and Kerala to show that provisions of bonafide need were more or less similar. And it has been held where landlord residing in tenanted accommodation applies for release his need has not been held to be bonafide unless it was held that the accommodation in which he was residing was unsuitable- Kamail Singh v. Vidya Devi, Rent Control Reporter 592, Punjab and Haryana and Sarmukh Singh v. Hazavi Lal Marwaha, 1979 Rent Control Reports 78 Delhi. He urged that mere wish of the landlord was not sufficient. It should be need and that also bonafide. According to learned counsel the Legislature having used this expression the Court should allow application on very strong grounds. Reliance was placed on Amrit Lal Walice v. Bhagwant Singh, 1980 (2) Rent Control Reporter 719 and R. K. Jain v. Khazan Singh, 1980 (1) Rent Control Reports 687. Learned counsel further urged that premises occupied by tenant on rent are not on the mercy of landlord. It is in his own right, a right in property protected under Transfer of Property Act, and Rent Control Act. According to him the case of opposite party stands on still stronger footing as petitioner is in occupation of his own house, is under no threat of eviction has sufficient accommodation both for residence and business. It need not be emphasised that bonafide need of landlord is the first and foremost consideration for an application for eviction u/Sec. 21. But whether it was made out in this case or not is not proposed to be examined at this stage as the finding of appellate authority having found to be vitiated it is expedient to direct appellate authority to decide the appeal afresh. In the result this petition succeeds and is allowed. The order of appellate authority is quashed. He shall decide the appeal afresh. Parties shall bear their own costs. Petition allowed.;