- (1.) M. Katju, J. This writ petition has been filed against the impugned order dated 7-5-1993. Annexure 7 to the writ petition.
(2.) I have heard Shri Janardan Sahai, learned counsel for the petitioner and shri Sunil Ambwani for respondent No. 3. The respondent No. 3 is the landlady of the disputed accommodation No. 46/21, Kalyani, Civil Lines, Meerut and the petitioner is the tenant. The respondent No. 3 has filed application under Section 21 of U. P. Act No. 13 of 1972 against the petitioner and Swam Talwar who are tenant of House No. 46/21, Kalyani, Civil Lines, Meerut of which the petitioner's husband Chunni Lal Talwar was tenant since 1975 and after his death the petitioner and Swaran Talwar are tenants. A true copy of the release application is Annexure 1. The petitioner filed written statement in reply to the application under Section 21. A true copy of the written state ment is Annexure 2 and a true copy of the petitioner's additional written statement is Annexure 3. By order dated 7-12-1991 the release application under Section 21 was rejected by the prescribed Authority but in appeal the order has been reversed by judgment dated 7-5- 1993. Aggrieved the petitioner has filed this writ petition. Admittedly in the House No. 46/21 Kalyani, Civil Lines, Meerut the petitioner is living in one portion m the ground floor consisting of four rooms while in another portion on the first floor Dr. Deshwal was living in three rooms and one Major Dhawan was living in one room on the first "floor and one room in ground floor. Dr. Deshwal has admittedly vacated the accommodation which was in his tenancy on the first floor but it is alleged that the roof has fallen down. Hence the court below has held that the accommodation which was in the tenancy of Dr. Deshwal is not available to the respondent No. 3. I am not in agreement with the view of the appellate court. The respondent No. 3 can get the roof built in the accommodation which was formally in the tenancy of Dr. Dashwal consisting of three rooms etc. The respondent No. 3 has an industry and there is no reason to believe that she would not have funds for building a roof. It was also alleged by the petitioner in Para 22 of the written statement before the prescribed Authority that Major Dhawan has built his own accommodation in Mansarowar, Meerut and this fact has been admitted in Para 27 of the affidavit of Smt. Chand Rani filed before the prescribed Authority A true copy of this affidavit is Annexure CA-3 to the counter-affidavit. Thus prima facie it seems to be a case of a deemed vacancy in respect of the accomodation in possession of Major Dhawan in House No. 66/21 Kalyani, Civil Lines, Meerut (though I am not expressing a final opinion on this point ). As held by this Court in 1980 ARC 134 in Sri Rameshji Nigam and others v. District Judge, Kanpur and others, if the accommodation in possession of some tenants or licensees could be available to the landlord with out any difficulty and yet he does not obtain possession of that accommodation and moves under Section 21 against another tenant, this conduct can legitimately be taken throw a doubt on his plea unless some convicting explanation is offered. In my opinion the landlady could have easily filed an application under Section 16 for release of the accommodation in possession of Major Dhawan alleging deemed vacancy but the landlady has not done so. A contrary decision has been cited by Shri Ambwani, S. C. Mathur v. 13th A. D. J. , 1993 ARC 266, in which it was held that deemed vacancy of an additional accommodation cannot be made the basis of deciding the application under Section 21. In my opinion this decision is distinguishable. This decision will apply where the landlord does make an application under Section 16 read with Section 12 but for some reason the proceeding under Section 16 is not decided within a reasonable time or for some other reason he has not been able to get relief in such proceed ing. Thus this decision will not apply where the landlord does not file any application under Section 16.
(3.) IN view of the above discussion, the writ petition is allowed. The impugned order dated 7-5-1993 is set aside and the matter is remanded to the appellate authority to decide the application afresh in the light of the observations made above. If they so desire, the parties can file fresh evidence by way of affidavits in connection with the accomodation occupied by Dr. Deshwal and Major Dhawan to substantiate their pleas. The appellate court will consider whether the landlady's need will be satisfied if the accom modation occupied by Dr. Deshwalas well as Major Dhawn are taken into consideration. If the respondent No. 2 files an application under Section 16 read with Section 12 in connection with the portion of the accommodation formally occupied by Major Dhawan within a month from today the said application under Section 16 will be decided after hearing the patties concerned within three months. If such an application under Section 16 is filed within a month the appellate court will await the decision of the said application under Section 16 and take the said decision into considera tion. The appeal must be decided within six months from today after hearing the parties concerned. Petition allowed. .;