Sibghat Ullah Khan, J. - (1.) THIS is landlord's writ petition arising out of eviction/release proceedings under section 21 of U.P. Act No. 13 of 1972 on the ground of bona fide need initiated by Smt. Saraswati Devi landlady original petitioner since deceased and survived by her son and legal representative Dinesh Kumar against tenant respondent No. 2. Release application was registered as P.A. Case No. 79 of 1988 on the file of Prescribed Authority/Ist Additional Civil Judge, Gorakhpur. Prescribed authority held the need of the landlady for setting her son Dinesh Kumar in the business from the shop in dispute to be bona fide. Question of comparative hardship was also decided in favour of the landlady. Release application was allowed by prescribed authority on 3.2.1990. Against the said judgment and order tenant -respondent No. 2 filed appeal under section 22 of U.P. Act No. 13 of 1972 which was registered as Misc. Civil Appeal No. 52 of 1990. IIIrd Additional District judge, Gorakhpur allowed the appeal on 27.8.1999, set aside the judgment and order of the prescribed authority and dismissed the release application hence this writ petition. The Appellate Court agreed with the prescribed authority that landlady had fully proved her bona fide need for setting her son Dinesh Kumar in business in the shop in dispute (Now Dinesh Kumar is petitioner as he has been substituted at the place of his mother, the original petitioner Smt. Saraswati Devi). However, Lower Appellate Court held that tenant would suffer greater hardship in case release application was allowed than the hardship which would be faced by the landlady in case release application was rejected. Tenant admitted that there were two other shops in his occupation. In one of the said shops one of his son was doing business of photography and in the other shop his other son was doing business of ornament making. Appellate Court strangely enough held that landlady could not produce any evidence to show that from the other two shops tenant was having regular income. Appellate Court held that business from the shop in dispute was the only source of income of tenant, hence he would suffer greater hardship in case of ejectment. When other two sons of tenant are carrying on independence business in other shops, it cannot be said that tenant would suffer greater hardship in case of eviction. Even otherwise tenant did not show that what efforts he made to search alternative shop after filing of the release application. This by itself was sufficient to decide the question of comparative hardship against tenant vide B.C. Bhutada v. G.R. Mundada : AIR 2003 SC 2713. The little hardship which will be faced by tenant can be mitigated by grant of reasonable time to vacate.
(2.) JUDGMENT of Lower Appellate Court therefore is erroneous in law and liable to be set aside. Accordingly writ petition is allowed. Judgment and order passed by Lower Appellate Court is set aside and judgment and order passed by prescribed authority is restored. However, tenant respondent No. 2 is granted nine months time to vacate provided that within one month from today he files an undertaking to the effect that within the period of nine months he will willingly vacate and handover possession of property in dispute to the landlord -petitioner.;