- (1.) S. U. Khan, J. This is landlord's writ petition which has been filed against second remand order dated 4-1-1985 passed by Appellate Court exercising powers under Section 22 of U. P. Act No. 13 of 1972.
(2.) THIS writ petition arises out of eviction/release proceedings in respect of a shop bearing No. 6 initialed by the landlord petitioner against tenant-respondent No. 3 since deceased and survived by his legal representatives under Section 21 of U. P. Act No. 13 of 1972 on the ground of bona fide need in the form of case No. 14 of 1978 on the file of Prescribed Authority, Jhansi. The release application was dismissed by Prescribed Authority on 10-2-1982 against which landlord filed Rent Control Appeal No. 18 of 1982. District Judge, Jhansi allowed the appeal on 12-11-1962, set aside the judgment and order Prescribed Authority and remanded the case back to the Prescribed Authority with the direction that after giving an opportunity to the parties to adduce further evidence in support of their respective cases fresh decision must be taken by the Prescribed Authority. Appellate Court in its judgment held that in respect of shop Nos. 7 and 8 an allegation was made by the tenant that they were let out by the landlord petitioner to other persons recently while landlord stated that they were in tenancy occupation of other tenants since long hence it was necessary for the tenant to give exact or approximate date when those tenants were given possession of the said shops by the landlord to substantiate their allegation that the need of the landlord was not bona fide (para-8 ). Appellate Court also held that question of partition shall also be decided afresh after permitting the parties to adduce further evidence (para-9 ). Copy of Appellate Court's judgment dated 12-11-1982 is Annexure C. A. 1 to the counter-affidavit After remand both the parties adduced additional evidence before the Prescribed Authority. Regarding the time when shop Nos. 7 and 8 were let out. Prescribed Authority considered two affidavits filed on behalf of the tenant and the two affidavits filed by the landlord alongwith rent receipts which were produced by landlord in respect of shop Nos. 7 and 8. After considering the said evidence the Prescribed Authority held that the landlord's version that partition took place in 1973 and shop Nos. 7 and 8 were let out since before partition of 1973 was correct and proved. The Prescribed Authority ultimately by order dated 21-5-1983 allowed the release application holding the need of the landlord to be bona fide and also deciding the question of comparative hardship in his favour. Against judgment and order dated 21-5-1983 tenant filed appeal being Rent Control Appeal No. 38 of 1983. District Judge, Jhansi by the impugned order dated 4-1-1985 again remanded the matter to the Trial Court with the direction that "specific finding should be recorded after allowing the parties an opportunity to lead any fresh evidence as they deserve on the question of partition alone". Appellate Court in para-7 observed that under Rule 15 (2) of the Rules framed under U. P. Act No. 13 of 1972 it was mandatory that all the co-landlords shall sign the release application, the Appellate Court further held that in view of this it was most essential to decide as to whether any petition among landlord and his brothers as alleged by him had taken place or not. The view of the Appellate Court was that in case partition had not taken place then release application would have to be dismissed as not maintainable for want of signatures of all co-landlords. In view of this impression of law, lower Appellate Court remanded the matter to the Presented Authority to give specific finding on the question of partition. However in Gopal Dass & Anr. v. 1st A. D. J. , 1987 (13) ALR 275 (FB), the aforesaid rule has been struck down and it has been held that it is not at all necessary that all the co-landlords shall be party to the release application either as applicants or as proforma respondents.
(3.) A suit for eviction of a tenant can be filed by only one landlord without even impleading other co- landlords as proforma respondents. On this point in my judgment in Gulab Chand Verma v. Badri Narain Mishra, 2005 (2) JCLR 203 (All) : 2004 (57) ALR 43. I have placed reliance upon six Supreme Court authorities. The latest being M/s. India Umbrella Manufacturing Co. & Ors. v. Bhagnbaadei Agarwalla & Ors. , 2004 (55) ALR 98 : 2004 (14) AIC 80 (SC ). The same principle applies to release application under Section 21 of U. P. Act No. 13 of 1972. Even otherwise question of partition is not much relevant as Prescribed Authority has held that shop Nos. 7 and 8 were let out before 1973. If the Appellate Court reveres the said finding and holds that shop Nos. 7 and 8 were let out immediately before filing of the release application then question of partition may assume significance in view of Supreme Court authority in S. S. S. M. Chaudhari v. A. Bukate, AIR 1997 SC 998.;