- (1.) T. P. Garg, J. This writ petition has been filed by Ram Kishun, tenant, against the order of Prescribed Authority dated 3-5-1986 (Annexure 11 to the writ petition) allowing the release application under Section 21 (1) (a) of the U. P. Urban Building (Regulation of Letting, Rent, and Eviction) Act, 1972, (Act No. 13 of 1972) (hereinafter referred to as the 'act'), being application No. 148 of 1983 and the judgment dated 29-3- 1990 (Annexure 13 to the peti tion) passed by the XIth Addl. District Judge, Varanasi, dismissing the peti tioner's appeal against the aforesaid order of the prescribed authority.
(2.) BRIEF facts giving rise to the present petition are as under: Nand Lal alias Nanda and Lalji, sons of Laxman landlords filed an application under Section 21 (1) (a) of the Act in the court of Prescribed Autho rity, Varanasi on the allegations that they are the sons of Laxman ; that the wife, sons, daughters, grandsons and grand-daughters of the said Laxman were living in house No. CK 63/145 Mohalla Chhoti Piyari, Varanasi ; that some times in the year 1968 Laxman had, in his life-time, given one shop and one room in dispute of the aforesaid building, detailed fully in the application to the petitioner on a monthly rent of Rs. 40 in order to meet his financial needs. Laxman had received a sum of Rs. 500 as advance rent. It was agreed between the landlord and the tenant that the tenant would not sub-let the demised premises and the landlord would have a right to get the demised premises vacated as and when he requires the same. It is alleged that the said Laxman died about 13 years ago. At that time Munnoo (son), Smt. Sukha Devi (daughter) and Smt. Patti Devi (wife) were all major. The other sons and daughters of Laxman were minors ; that on the death of Laxman, an agreement was executed between Smt. Patti Davi, wife of Laxman, and Ram Kishun, petitioner/tenant, to increase the rent from Rs. 40 to Rs. 50 : that Smt. Patti Devi, mother of th applicants, filed a release application under Section 21 of the Act on the ground that the demised premises were required for doing business, but the same was rejected. It was further alleged that the petitioner along with Jhuri and Harihar filed Suit No. 325 of 1982 against Smt. Patti Devi and they also started criminal proceedings against her, which were still pending. It is alleged that in the ground floor of the house m dispute there are three rooms, temple of Shree Radha Kishanji Aangan (court yard), Rasta (passage), staircase and latrine, while on tfie first floor there are three rooms. In one room on the ground floor Laxman aforesaid was living while Jhun and Hanhar occupied the same unauthorisedly although they were living in another house bearing No. CK 63/144. It is alleged that the family of the landlord is living in three rooms on the first floor and one room on the ground floor, while the remaining one room and the shop is in possession of Ram Kishun, petitioner, as tenant. After the death of Laxman his sons went on becoming major. Munnoo had two children while Ganesh had also been married. Smt. Sukha, daughter of Laxman has since been deserted by her husband and she was also living in this very house along with her son. In this manner, as many as 11 members of the family are living in the accommodation available in house No. CK 63/145. The accommodation available to them is comprised of three rooms on the first floor and one room on the ground floor. Smt. Patti Devi, Munnoo, Ganesh and Smt. Sukha were impleaded as proforma respondents. The application was filed on the ground that the applicants required demised premises for starting their own business and that Nand Lal, applicant No. 1, was also to be married and would require additional accommodation. It was alleged that Ram Kishun, tenant, had also taken another premises on rent in front of the shop in dispute and the use of the demised premises is only symbolic, Thuri and Harihar, respondents, were brokers and were living as sub-tenants without the permis sion of the landlord, who never permitted Ram Kishun to sub-let the promises. The need of the landlord was stated to be bonafide and genuine. Ram Kishun, Jhuri and Harihar filed a joint reply to the release application wherein while admitting the tenancy, the remaining allegations were denied. It was, inter alia, pleaded that they were tenants of the demised premises since the year 1966 and paying rent at the rate of Rs. 50 per month Further that Nand Lal is engaged in the work of electric fitting and decoration and was having sufficient income from that business ; that Jhuri and Harihar were dependant upon Ram Kishun and were real brothers ; that the earlier petition filed by Smt. Patti Devi was in fact pursued by Nand Lal and the same was dismissed. The appeal against that order was also dismissed by the IInd Addl. District Judge on 8-9-1981. After having failed in the earlier litiga tion, the landlords were now trying to get the demised premises vacated in one way or the other. It was admitted by the tenant that he had taken a small room on rent from one Ramji in front of the shop in dispute in order to prepare sweets and the size of which was 5'x5' (feet) which was not sufficient to run a shop. The need of the landlord was stated to be neither just nor bona fide. Further that Lalji was working with his brother, Nand Lal and both of them were doing the work of electric fitting and did not require any extra ac commodation for their business. It was admitted that on account of paucity of space Harihar, respondent, had taken one small room in the nearby house where he was living with his wife and children. It was denied that Jhuri was a sub-tenant in the demised premises. It was contended that the release ap plication had been filed in order to put pressure on the petitioner. After affording opportunity to the parties to lead evidence and hear ing the counsel for the parties, the Prescribed Authority, vide order dated 3-5-1986, allowed the application of respondent-landlords and directed the petitioner to vacate the demised premises within a period of one month. The petitioner preferred an appeal against the said order which was heard by the XIth Addl. District Judge, Varanasi, who vide his order dated 29-3-1990 dismissed the same.
(3.) IN the present petition the tenant has challenged both the aforesaid orders, inter alia, on the ground that the earlier order of the Prescribed Autho rity dated 3-2-1981 and the order of the appellate authority dated 8-9-1981 were binding upon the parties and subsequent release application was thus barred by principle of res judicata. The need of the landlord was also stated to be neither genuine nor bona fide and that the comparative hardship to the tenant was more than the landlord. I have heard the learned counsel for the parties and also gone through the record of the case.;