Sibghat Ullah Khan, J. - (1.) HEARD Sri T.B. Pandey learned Counsel for the landlord -petitioner and Sri P.K. Jain learned Counsel for the tenant respondent No. 3/2. This is landlady's writ petition arising out of eviction/release proceedings initiated by her against original tenant respondent No. 3 Guru Dutt Malhotra since deceased and survived by 7 legal representatives. Sri P.K. Jain learned Counsel who has filed Vakalatnama on behalf of Subhash Malhotra, respondent No. 3/2 states that only Sri Subhash Malhotra alongwith his family and Smt. Krishna Malhotra who is widow of respondent No. 3 (and mother of Subhash Malhotra) are residing in the house in dispute and other heirs of original respondent No. 3 Guru Dutt Malhotra are residing in other houses (In spite of sufficient service no other legal representative of respondent No. 3 has appeared). The release application was registered as P.A. Case No. 127 of 1983. The prescribed authority himself inspected the accommodation in possession of the landlord and the disputed accommodation. Both the accommodations are adjacent to each other. Prescribed authority, Meerut on 18.3.1985 dismissed the release application holding that rooms in possession of the landlord were quite big and either sufficient in the existing form for the need of the landlord or they would be further divided by making certain changes to satisfy the need of the landlord. Landlady had asserted that two of her sons were going to be married. Prescribed authority held that until marriage need for the said purpose could not be considered. Against the judgment and order passed by the prescribed authority landlady -petitioner filed Appeal No. 100 of 1985. II A.D.J. Meerut dismissed the appeal on 12.2.1990, hence this writ petition.
(2.) IN Para 3 of the counter -affidavit filed in this writ petition sworn on 7.7.2005, it has been stated that one of the sons of landlady Gurdeep Singh has constructed his house at B -195 Pandav Nagar, Meerut. It has further been stated that the other son of landlady has settled at U.S.A. and the daughter is residing at Delhi with her husband. In Para 5 of the rejoinder affidavit, it has been stated that Gurdeep Singh is residing in a rented accommodation i.e. house No. 4 Soni ganj alongwith his family due to paucity of accommodation. First of all it will have to be decided as to whether Gurdeep Singh son of landlady petitioner has constructed a house or is residing in a tenanted house. If a house has been constructed by him then it will be a circumstance mitigating the need of the landlady. However, if Gurdeep Singh is residing in a tenanted house it will be a circumstance having a material bearing on the need of the landlady as the Supreme Court in G.K. Devi v. Ghanshyam Das : AIR 2000 SC 656, has held that if a landlord or any of his family members is residing in a tenanted house it can not be taken into consideration for denying the release of the tenanted accommodation on the ground of bona fide need. If one of the family members of landlord is compelled to reside in a tenanted accommodation it proves that the need of the landlord is bona fide. However, these disputed questions of fact can not be decided in this writ petition. Moreover, after the death of the original tenant respondent No. 3 and after shifting of several of his family members to other house and cities the position has materially changed in that regard also. All these things require reconsideration.
(3.) ACCORDINGLY , writ petition is allowed. Judgment and order passed by the Lower Appellate Court is set -aside. Matter is remanded to the Appellate Court to decide the appeal afresh after providing opportunity to both the parties to adduce evidence in respect of the events, which have occurred since the earlier decision of the Appellate Court dated 12.2.1990.;