S.U. Khan, J. - (1.) Restoration applications and Substitution application are allowed.
(2.) This is tenant's writ petition arising out of eviction/release proceedings initiated by landlord respondent no. 1(since deceased and survived by L.Rs) against him on the ground of bonafide need under section 21 of U.P.Act No. 13 of 1972 in the form of Rent Case No. 7 of 1984. Prescribed Authority/ Civil Judge Kanpur Dehat through judgment and order dated 19.4.1986 allowed the release application. Against the said judgment and order tenant-petitioner filed Rent Control Appeal no. 1 of 1986. Second Additional District Judge,Kanpur Dehat through judgment and order dated 21.2.1991 dismissed the appeal, hence this writ petition.
(3.) Property in dispute is a shop having frontage of 7 feet and depth of about 18 feet. Towards west of the shop in dispute there is another shop having frontage of 14 feet and depth of about 18 feet. In para 4 of the release application it was stated that landlords' family consisted of 12 members inclujding 3 sons aged about 26 years, 20 years and 16 years. In paragraphs 7 to 10 of the release application it was stated that in the shop adjoining to the shop in dispute landlord was carrying on the business of Kerana; that landlord needed the additional accommodation to expand the business in order to augment the income. It was further stated that two sons of landlord i.e. Mahendra Kumar and Rajendra Kumar were assisting him in the business and that one son Ashok Kumar was unemployed and it was necessary to settle him in separate business. The tenant contended that the shop in possession of landlord was actually in the form of two shops and in one shop landlord was carrying on business and in the other shop his son Ashok Kumar, for whose need release application was filed, was doing business. Some photographs were also filed showing that there were two shops in possession of the landlord. It is quite possible that there might be wooden partition or a partition wall of cement and bricks in the shop in possession of the landlord at some point of time. Prescribed Authority appointed Commissioner to inspect the property in dispute and the adjoining properties. Commissioner submitted report along with map. Copy of report is Annexure 8 and copy of the map is Annexure 8-A. In the said map disputed shop is shown by letters CDHI. The shop in possession of the landlord is shown by letters ACIJON. The frontage of the portion in possession of the landlord is 14 feet. If due to shortage of accommodation the said portion is divided into two shops by partitioning the same then it does not mean that landlord has got no bonafide need. If the said portion is divided in to two portions then each portion will have a frontage of only 7 feet. The fact that the said shop has been divided into two portions in order to accommodate one of the sons of the landlord, rather proves the bonafide need of the landlord. It clearly shows that landlord is short of accommodation and requires additional accommodation for his business and business of his sons. Two of the sons are helping the landlord in his business hence he requires a bigger accommodation. Learned counsel for the tenant petitioner has vehemently argued that the rejoinder affidavit of the landlord sworn on 27.3.1985 and filed before the Prescribed Authority, copy of which is annexure ''6' to the writ petition, contained such admissions which disprove the case of the landlord. In this regard particular reference has been made to paragraphs 7, 8 and 9 of the said rejoinder affidavit. Learned counsel for the landlord has argued that there are typing mistakes in the said copy. Learned counsel has supplied a Kachchi copy of the said rejoinder affidavit. In any case, I do not find any such admission in the said rejoinder affidavit, which may benefit the tenant in the least. In respect of comparative hardship both the courts below held that tenant did not make any effort to search alternative accommodation after filing of the release application. Supreme Court in B.C. Bhutada v. G.R. Mundada (A.I.R. 2003 S.C. 2713) has held that this by itself is sufficient to tilt the balance of hardship against the tenant.;