- (1.) S. U. Khan, J. Heard learned Counsel for the parties. On 6-7- 2005 learned Counsel for tenant-respondent No. 3 was directed to file reply to the supplementary affidavit. Shri Dharam Pal Singh, learned Counsel for tenant- respondent No. 3 states that his client is not responding hence he cannot file reply to the supplementary affidavit. As original supplementary affidavit is not on record hence duplicate copy thereof supplied by learned Counsel for the petitioners is taken on record and treated to be original.
(2.) THIS is landlords writ petition arising out of eviction/release proceedings initiated by them against tenant- respondent No. 3 Smt. Kama Devi on the ground of bona fide need under Section 21 of U. P. Act No. 13 of 1972. Property in dispute is a house. Release application was registered as case No. 1 of 1987 on the file of Prescribed Authority/civil Judge, Kanpur Dehat. Release application was rejected on 31-5- 1988 against which landlords filed Rent Appeal No. 2 of 1988. IInd A. D. J. , Kanpur Dehat dismissed the appeal on 25-4-1992, hence this writ petition. One of the ground taken by the Courts below was that landlords had not disclosed the names of the family members. In my opinion this ground is not at all tenable. It is not necessary to disclose the names of all the family members. Other ground taken was that one of the sons of landlords who was married was residing along with his father-in-law. Such residence is only as licensee and not as of right, hence it cannot be taken into consideration. The argument of learned Counsel for landlord- petitioners that this fact instead of disapproving, rather proved the need of the landlords is quite convincing. According to the learned Counsel for the petitioners it was only due to paucity of accommodation that the said son has to live along with his in- laws. The third point taken by the Courts below for rejecting the release application was availability of ancestral house. Landlords ancestral house is about 2 kms. away from the house in dispute. The building, house in dispute is a part of which, consists of three floors, on the first floor tenant is residing. On the second floor landlord long with his family members is residing. Having a share in ancestral house is not a ground to reject the release application. In case the said house had been suitable, landlords would have been residing therein. The fact that landlords are residing on the second floor clearly shows that the ancestral house is not suitable for them. Choice of residence is of the landlord and in this regard he cannot be dictated by the tenant, vide Sarla Ahuja v. United India Insurance Co. , AIR 1999 SC 100.
(3.) IN the supplementary affidavit it has been stated that in July, 2002 tenant had purchased another house and had shifted therein. Copy of the sale deed dated 5-7-2002 has been annexed alongwith supplementary affidavit. IN the absence of any counter affidavit said version is taken to be correct. Accordingly, I find that judgment and order passed by both the Courts below are patently erroneous in law. Learned Counsel for the tenant-respondent argues that even if tenant has acquired some house still need of landlord is to be proved. As stated earlier I find that landlords have completely proved their bona fide need, and both the Courts below committed patent error in law in holding that need of the landlord was not bona fide. Supreme Court in G. C. Kapoor v. S. K. Bhasin, 2001 (45) ALR 808 (SC), allowed the release application out rightly which had been dismissed by all the three Courts.;