Sibghat Ullah Khan, J. - (1.) LIST revised. No one appears for the tenant -respondents. Heard learned Counsel for the landlady -petitioner. This is landlady's writ petition arising out of eviction/release proceeding initiated by her against the tenant -respondent No. 2 Gyan Chand on the ground of bona fide need under section 21 of U.P. Act No. 13 of 1972 in the form of Rent Control Case No. 7 of 1986 on the file of Prescribed Authority/Munsif II; Bulandshahr. The prescribed authority found the need of the landlady to be bona fide. Question of comparative hardship was also decided in favour of the landlady -petitioner. The Prescribed Authority, therefore, on 9.9.1988 allowed the release application. Against the said judgment and order respondent No. 2 filed Rent Control Appeal No. 40 of 1988. Vth Additional District Judge, Bulandshahr through judgment and order dated 5.12.1990 allowed the appeal and set aside the judgment and order passed by the Prescribed Authority, hence this writ petition by the landlady.
(2.) ACCOMMODATION in dispute consists of three rooms and is situate at first floor. Ground floor is in possession of the landlady, which according to her is not sufficient for her family, which is quite big. The first ground taken by the Appellate Court for setting aside the order of the Prescribed Authority is that as earlier release application filed by the landlady had been rejected, hence the second release application filed on the same ground was not maintainable. According to the Appellate Court the issue of need of the landlady was barred by res judicata. This view is patently erroneous in law as earlier release application was dismissed in default and not on merits. The Prescribed Authority found that out of six sons of the landlady, youngest son, who was unmarried, was residing with her. Prescribed Authority also found that four of the sons of the landlady were employed in other cities. In respect of Rakesh, one of the married sons of landlady, who was employed in Bulandshahr itself where property in dispute is situate. Prescribed Authority found that due to paucity of accommodation he was residing in another house situated in another Mohalla. The Appellate Court held that during pendency of appeal Rakesh Sharma had purchased a house in Avas Vikas Colony. According to the Appellate Court, on purchase of the house by Rakesh, there did not remain any need for him. However, if due to paucity of accommodation, one of the sons of the landlord/landlady is compelled to reside in another house as a licensee or tenant along with his family, then there cannot be any doubt that the need is bona fide. If such family member purchases another house, this will not mitigate the need, rather it re -affirms the need. In case tenant had vacated the accommodation in dispute, there would not have been any necessity for Rakesh to purchase another house.
(3.) THERE is one more important aspect which has been completely overlooked by the Appellate Court. In both the portions in occupation of landlady as well as tenant, there is only one latrine and bathroom. Need for separate latrine and bathroom is so bona fide that there cannot be two arguments about it. Within one or two kilometers away from the house in dispute, tenant is having a very big house. The tenant asserted that it was situated in village. Even if the area where house of the tenant is situated is beyond municipal limits of the city, still the fact that the said house is only about 2 kilometer away from the house in dispute shows that absolutely no hardship would be caused to the tenant in case he is evicted.;