Sibghat Ullah Khan, J. - (1.) THIS is landlords' writ petition arising out of eviction/release proceedings initiated by them against tenants -respondents in respect of shop in dispute on the ground of bona fide need under section 21 of U.P. Act No. 13 of 1972. Release application was registered as case No. 1 of 1982 and was allowed by Prescribed Authority/Munsif City, Jaunpur on 2.9.1982. Against the said judgment and order tenants -respondents filed P.A. Appeal No. 192 of 1982. IIIrd A.D.J., Jaunpur through judgment and order dated 3.9.1987 allowed the appeal, set aside the judgment and order of the Prescribed Authority and dismissed the release application hence this writ petition by the landlord. Release application was filed by Kedar Nath - -Petitioner No. 1 since deceased and survived by two sons and widow and petitioner No. 2 Baij Nath. In the release application it was stated that Kedar Nath was un -employed and his two sons (who have now been impleaded in the writ petition at his place) were also un -employed. It was also stated that Baij Nath was doing the business of swelling sweets and namkeen from a small shop in Paan dariba and that his two sons were also un -employed. In respect of tenants it was stated that one of the tenants Ravindra Nath who alone was doing business in the shop in dispute had recently constructed a big house containing two shops which had been given to his relation and friend in order to show that they were let out. It was further alleged that Raja Ram was the original tenant and after his death his heirs opposite party Nos. 1 to 5/contesting respondents inherited the tenancy however, opposite party No. 1/respondent No. 2 Ravindra Nath alone was using the shop in dispute. Only Ravindra Nath contested the proceedings and asserted that he alongwith his mother was doing business from the shop in dispute. The Prescribed Authority rightly held that mother of opposite party No. 1 was so old that she could not do any business and Ravindra Nath opposite party No. 1 alone was using the shop in dispute. The Prescribed Authority found the need of landlord to be bona fide. Prescribed Authority also held that tenant Ravindra Nath had got constructed two shops hence he would not suffer hardship in case of eviction. The lower Appellate Court took a strange view of the matter. Lower Appellate Court held that the two shops constructed by the tenant Ravindra Nath had been let out by him hence they were not available to him. Lower Appellate Court further held that need of the landlord was not bona fide as both the landlords had two shops and their sons were helping them in their business and in this manner landlords and their sons were earning. Lower Appellate Court held that it was true that major sons had full right to run and own their separate businesses. However, lower Appellate Court went on to say thereafter that "but at present they are well established and earning their livelihood". Thereafter, lower Appellate Court observed that learned Munsif had not given finding on the basis of allegations and evidence of the landlord but had based the same on the allegation of the tenant. The view of the Appellate Court is patently erroneous in law and against the record. Prescribed Authority after discussing the evidence of the landlords in regard to their bona fide need and the evidence of the tenant adduced in rebuttal of the name came to the conclusion that the need of the landlord was bona fide. It is strange that in one and the same sentence lower Appellate Court held that need for every adult member to establish his separate businesses is bona fide but shop cannot be released for the sons of the landlords as they were participating in the business of their fathers. The Supreme Court in Susheela v. A.D.J., 2003 (52) ALR 160 (SC) :, 2003 (9) AIC 156 and A. Kumar v. Mustaqueem : AIR 2003 SC 532, has held that every adult member of landlord's family is entitled to have his separate business and the mere fact that he is participating in the family business is no ground to reject the release application filed for establishing that family member of the landlord in independent business.
(2.) ACCORDINGLY , I am of the view that judgment and order passed by the lower Appellate Court is patently erroneous in law and liable to be quashed. Prescribed Authority rightly held that the need of the landlord was bona fide and tenant would not suffer greater hardship in case of eviction. In this regard it is also important to note that tenant Ravindra Nath immediately before filing of the release application constructed a big house containing two shops and let them out. A tenant cannot be permitted to continue to occupy the tenanted shop on highly inadequate rent (Rs. 40/ - per month in the instant case) and construct new shops and let them out on higher rent. In any case tenants did not show that what efforts they made to search alternative accommodation after filing of the release application. Even if Ravindra Nath's tenants in the shops constructed by him were bona fide tenants, he should have initiated eviction proceedings against them. He did not bring on record anything to show that any such case for eviction was filed by him against his tenants. Even in the supplementary affidavit filed in May, 2005 no such thing has been stated. The Supreme Court in B.C. Bhutada v. G.R. Mundada : AIR 2003 SC 2713, has held that if tenant does not make any effort to search alternative accommodation after filing of the release application then it by itself is sufficient to tilt the balance of comparative hardship against him. A supplementary counter affidavit sworn in December, 2004, copy of which was given to the learned Counsel for the petitioner on 4.5.2005 has been filed on 20.7.2005. In the said supplementary counter affidavit it has been stated that one Jwala Prasad a close relation of landlords bequeathed his property to the landlords and their sons and thereafter both the landlords divided the said property among themselves. Copies of the will and the family partition have also been annexed. In para 4 of the family partition it has been stated that in house No. 215 Kanchan Kumar one of the sons of Kedar Nath was doing the shop of Tea and Namkeen. On the basis of this fact it has been alleged that the need of the landlord if any stood satisfied. Learned Counsel for the landlord -petitioner argued that subsequent event could not be taken into consideration. I do not propose to decide as to whether this subsequent event can be taken into consideration or not. Even if this subsequent event is taken into consideration, it will not make any difference. In the release application both the landlords had stated that they had two sons each who also required shop for independent business. Even if out of those four sons one son has got a shop, the need for three sons still remains. Out of these three sons if one is using the shop which was alleged to be available to Kedar Nath petitioner No. 1 who has now died, need for two sons still survives. In para 17 of the release application it was clearly stated that the two sons of Baij Nath petitioner No. 2 i.e. Raj Kumar and Manoj Kumar also required shop for business. The lower Appellate Court in its judgment held that Kedar Nath and Baij Nath each had one shop. It is not clear that from where this fact was obtained by the lower Appellate Court. In the release application it was stated that in a shop situate in Paan dariba only Baij Nath was doing business. In the written statement copy of which is Annexure C. A -1 in para 11 it was stated that the said shop at Paan Dariba was of two doors in which Baij Nath carried on his business and some times Kedar Nath also sat at the said shop. It was nowhere stated by the tenant Ravindra Nath that Kedar Nath was having a separate shop. In para 13 of the said written statement tenant Ravindra Nath admitted that he had purchased a building but it was stated that the two shops had to be given by him to Mohan Lal, Sridhar, Sanjai Kumar and Mahesh Kumar as they were the tenants since before purchase of the said building by the tenant. On behalf of landlord petitioner it has been stated that Mohan is his wife's brother of tenant Ravindra Nath who purchased the said building and Sanjai Kumar and Mahesh Kumar are his sons. However, this relationship has not been stated by any of the two Courts below. The fact remains that absolutely no efforts were made by Ravindra Nath tenant -respondent No. 2 to evict those tenants even if they were not his relations.
(3.) ACCORDINGLY , writ petition is allowed. Judgment and order passed by the lower Appellate Court is set aside. Judgment and order passed by the Trial Court is restored.;