- (1.) S. U. Khan, J. This is landlord's writ petition arising out of eviction/release proceedings initiated by him against tenant Rameshwar Dayal since deceased and survived by respondents 3 to 9 on the ground of bona fide need under Section 21 of U. P. Act No. 13 of 1972 in the form of P. A. Case No. 9 of 1984. Prescribed Authority/munsif, Pilibhit through judgment and order dated 10-5-1985 dismissed the release application against which petitioner filed R. C. Appeal No. 35 of 1985 which was also dismissed by IIIrd Additional District Judge, Pilibhit on 12-1- 1989 hence this writ petition.
(2.) PROPERTY in dispute is a shop purchased by the petitioner on 21-10-1980 and release application was filed by him after serving six months' notice. In the release application it was stated that landlord petitioner was doing business of selling paan (Betel leaves) alongwith his father and he wanted to establish his independent business. The tenant filed written statement and pleaded therein that a shop of Nagar Palika was in tendency occupation of the father of the landlord and landlord was doing business from the said shop alongwith his father (para-2 of the judgment of the Prescribed Authority and para-3 of judgment of the lower appellate Court ). The Prescribed Authority had also held that notice was not valid. This point was reversed by the appellate Court. The appellate Court in para-17 of its judgment held that as additional evidence, documents pertaining to OS No. 40 of 1984, Mohd. Arif v. North East Railways & Ors. , had been filed which proved that in the shop which was let out by Municipal Board to the father of the landlord, only landlord was carrying on business as the said suit pertained to damages for loss of consignment which was meant for the business carried out from the said shop. Lower appellate Court concluded that in case father of the petitioner was carrying on the business from the said shop then he should have been plaintiff in OS No. 40 of 1984. If a person is doing business alongwith his father then it cannot be said that his need to establish independent business is not bona fide vide Sushila v. ADJ, AIR 2003 SC 780 and A. Kumar v. Mustaquim, AIR 2003 SC 532. The interference drawn by the appellate Court from the documents pertaining to OS No. 40 of 1984 was also not warranted. If father and son are carrying on business the suit for damages can be filed only by son. In any case it will not make much difference. The shop from where the said business is being carried out is on rent either with the landlord-petitioner or with his father. Availability of a rented shop to the landlord can never be a ground for holding the need to start business from his own shop as not bona fide vide G. K. Devi v. Ghanshyam Das, AIR 2000 SC 656 and Dhanna Lal v. Kalawati Bai, AIR 2002 SC 2572 (Para 26 ).
(3.) DURING pendency of proceedings before the Court below the tenant died and his widow, sons and daughters were substituted. The widow only stated that the family members were carrying on the business from the shop in dispute. However, it was not stated that which family member was doing business from the shop in dispute. Even otherwise neither the original tenant nor after his death his legal representatives brought on record anything to show that after filing of the release application they had made any effort to search alternative accommodation. This by itself was sufficient to decide the question of comparative hardship in favour of the landlord (vide B. C. Bhutada v. G. R. Mundada, AIR 2003 SC 2713 ). Accordingly I hold that judgments and orders passed by both the Courts below on the question of bona fide need and comparative hardship are patently erroneous in law and liable to be set aside. Landlord fully proved the bona fide need. Balance of hardship also lay in his favour.;