Sibghat Ullah Khan, J. - (1.) THIS is landlord's writ petition arising out of eviction/release proceedings initiated by him against tenants -respondents 3 to 9 and their mother Smt. Krishna who died leaving behind only respondents 3 to 9 as her legal representatives. Release application was filed on the ground of bona fide need under section 21 of U.P. Act No. 13 of 1972 and was registered as P.A. Case No. 27 of 1985. Prescribed Authority/Munsif, Shahjahanpur through judgment and order dated 9.1.1987 allowed the release application. Against the said judgment and order two appeals were filed, one by some of the tenants and other by other tenants. Appeals were registered as Misc. Civil Appeal No. 33 of 1987 and 46 of 1987 respectively. 1st A.D.J., Shahjahanpur consolidated both the appeals and allowed them through judgment and order dated 10.1.1991. Appellate Court set aside the judgment and order of the prescribed authority and dismissed the release application of the landlord hence this writ petition. Property in dispute is a residential house. Towards south of the house in dispute across the road is situate another residential house, which belongs to the landlord in which he is residing (hereinafter referred to as landlord's house). In the landlord's house on the ground floor two rooms were also in tenancy occupation of tenants -respondents. Prior to filing of the release application giving rise to the instant writ petition tenants -respondents had vacated one of the rooms in the landlord's house. Both the rooms were being used by the tenants -respondents for business purposes. They were using the said rooms as godowns. The room vacated by the tenants -respondents in the landlord's house was let out by the landlord to one Virendra for business purposes. During pendency of the release application before the prescribed authority tenants -respondents offered to vacate the remaining room in the landlord's house also. Tenants contended that need of the landlord if any could very well be satisfied by the room which was in their possession in the landlord's house: Landlord did not agree to that.
(2.) LANDLORD at the time of filing of the release application had six sons and three daughters. Landlord pleaded that in his house he had only two small kotharies on the ground floor and one room and two small kotharies on the first floor available to him for accommodating his entire family and the said accommodation was quite insufficient. Landlord further pleaded that about a year before filing of the release application tenant had purchased a big house on 29.9.1984. In respect of the said house the previous owner of the said house Shri Lallu Ram had filed a release application against the tenant of the said house. The tenant of the said house was using the same for residential purposes and the previous owner landlord i.e. Shri Lallu Ram had also sought release of the said house for residential purpose. Release application was allowed. However, the said house in the municipal records was entered as godown. Prescribed authority held that the said house was in -fact a residential house. For recording this finding reliance was placed upon Advocate Commissioner's report who had inspected the same as well as on the fact that previously a tenant was using the same for residential purpose and previous landlord had sought release of the said house for residential purposes. Trial Court also observed that the said house was quite big containing several rooms and latrine, bathroom etc. Trial Court also held that tenant did not show that his business was of such a large scale that he required the entire newly purchased house for storing the merchandise. Strangely enough Appellate Court brushed aside all these aspect. Appellate Court agreed that it was in the shape of house and fit for the residence however, Appellate Court held that as it was entered in the municipal record as godown and as it could be used both ways and was being used as godown hence it could not be taken to be a residential house available to the tenant. In respect of actual residence of previous tenant in, the said house and release of the said house for residence of the previous owner, Appellate Court held that tenant not being a party to those proceedings could not take any advantage of the same. The view of the Appellate Court is not only illegal but rather shocking. The findings of the Appellate Court in this regard given an impression that he wanted to unduly benefit the tenant. If the building purchased by the tenant was capable of being used as residential house and was in fact being used as residential house prior to purchase by him then the said building was 100% available to the tenant for residential purpose. If after purchasing a residential house tenant stores some of his business items in one or two rooms, it cannot be said that he was bonafidely using the said accommodation as godown. During pendency of writ petition also tenants acquired several properties. This fact was brought on record through supplementary affidavit filed by landlord -petitioner alongwith an application filed on 18.9.2000. In the affidavit filed in reply to the said affidavit those allegations were not denied. In any case even if all the properties acquired during pendency of writ petition are ignored, purchase of house by the tenant one year before filing of the release application was quite sufficient to hold that in case of eviction tenant would not suffer any hardship. Explanation (i) to section 21(1)(a) of the Act is also attracted. Gravity of need of landlord lies in the realm of comparative hardship.
(3.) THE Lower Appellate Court disbelieved the need of the landlord on the ground that one room vacated by the tenants -respondents in the landlord's house was let out by him immediately before filing of the release application. The said portion was being used by tenants -petitioners as godown hence it was commercial in nature. It was also let out by the landlord to Virendra for business purposes. The said room/shop cannot therefore be taken into consideration while deciding the question of bona fide need. Similarly, the other room/shop in the landlord's house in the possession of tenants -respondents which they offered to vacate could not satisfy the need of the landlord.;