S.U.Khan, J. - (1.) This is tenant's writ petition arising out of eviction/release proceedings initiated by landlord respondent No. 3 Munna Lal Agarwal against them on the ground of bonafide need under Section 21 of U.P. Act No. 13 of 1972 in the form of P.A. case No. 69 of 1989. Prescribed Authority/Additional Civil Judge, Jhansi through judgment and order dated 9.7.1991, allowed the release application. Against the said judgment and order, petitioners filed R.C. Appeal No. 46 of 1991. Appeal was also dismissed on 17.1.1992 by A.D.J./Special Judge (E.C. Act), Jhansi hence this writ petition by the tenant.
(2.) Prior to filing of the release application-giving rise to the instant writ petition landlord respondent No. 3 had filed a suit before the JSCC against tenants petitioner asserting therein that petitioners were licensees. Relief of eviction and recovery of license fees/rent was sought in the said suit being O.S. No. 64 of 1982. Civil Judge, Jhansi through judgment and decree dated 20.8.1986, decreed the suit for eviction and recovery of license fees. Against the said judgment and decree tenants filed Civil Appeal No. 153 of 1985. A.D.J., Jhansi allowed the appeal in part. Suit for eviction was dismissed however suit for recovery of Rs. 7600/- as rent was decreed. Appeal was allowed on 20.8.1986. Against judgment and decree dated 20.8.1986 both the parties filed Second Appeals in this Court. Number of the Second Appeal of tenant is Second Appeal No. 2528 of 1986 and the said Second Appeal is pending. Landlords filed Second Appeal in the year 1986 along with delay condonation application. Delay was condoned in the year 1990 and regular number was allotted to the Second Appeal being Second Appeal No. 35 of 1990. In the Second Appeal of the tenant the only point involved is as to whether regular Civil Court can decree the suit for recovery of arrears of rent The landlord got his Second Appeal dismissed as not pressed through order dated 20.7.1990. The resultant position is that the finding of the appellate Court in the earlier litigation (Civil Appeal No. 153 of 1985 decided on 20.8.1986 by I. A.D.J. Jhansi) to the effect that petitioners are tenants of the respondent No. 3 has become final. Accordingly there is no need to hear this writ petition along with Second Appeal No. 2528 of 1986. Whether Second Appeal is dismissed or allowed, no effect will be made on this writ petition.
(3.) Landlord had pleaded that he was having very little accommodation at his disposal and he required additional accommodation hence accommodation in dispute which is residential in nature may be released. It was further pleaded and proved by the landlord that tenant had acquired another house through will and in that house he had six rooms in his possession. Tenant asserted that he had only one room in the said accommodation and the other rooms were occupied by the tenants. A Commissioner was appointed to inspect the accommodation in dispute, accommodation already available to the landlord and accommodation which the tenant got through will. Copy of Commissioner's report is annexure 5 to the writ petition. It is quite details report. The Commissioner reported that house No. 116 Chaudhariana Jhansi which was acquired by the tenant through will contained one big room plus some more rooms. Prescribed Authority had recorded a finding that in House No. 116, six rooms were available to the tenants. Appellate Court in that regard has held that even though all the six rooms were not available to the tenant but at least rooms were available to the tenant. Appellate Court also held that in view of this, explanation I to Section 21 (1) of U.P. Act No. 13 of 1972 was attracted. According to the said explanation if tenant has got alternative accommodation then hardships are not to be compared.;