S.U.Khan, J. - (1.) This is tenant's writ petition arising out of eviction/release proceedings initiated by original landlord respondent No. 3 Mohd. Shafi on the ground of bonafide need under Section 21 of U.P. Act No. 13 of 1972 in the form of Case No. 1 of 1982 on the file of Prescribed authority, Shikohabad district Mainpuri. Property in dispute is a shop rent of which is Rs. 20/- per month. At the time of the filing of the release application landlord had four sons Shamshad Irshad, Mohd. Nazim and Mohd. Kazim. Prescribed Authority through judgement and order dated. 27.4.1985 rejected the release application. Against the said judgement and order original landlord Mohd. Shafi filed Miscellaneous Civil Appeal No. 96 of 1985: Before the Appellate Court landlord admitted that two of his sons Shamshad and Irshad had been allotted a shop hence shop in dispute was required only for himself. The appellate Court found that landlord had no shop, hence his need was bona fide. This finding was perfectly correct. However, I may mention that in para 23 of the written statement tenant had mentioned that his need was greater than the need of the landlord. From this assertion Appellate Court concluded that tenant had himself admitted the need of the landlord. I can not approve this view. The tenant had only meant that in case of eviction he would suffer greater hardship. The mere use of the word that tenant's need was greater than the need of the landlord did not amount to admission of the tenant of the need of the landlord. However, thereafter Appellate Court found that landlord requried a shop or his business and he was not having any shop and hence his need was quite bonafide. This finding is approved.
(2.) In respect of comparative hardship Appellate Court rightly held that tenant did not make any efforts to search alternative Accommodation hence question of comparative hardship had to be decided against him. This finding is perfectly in consonance with the judgemert of the Supreme Court reported in B.C. Bhutada v. G.R. Mundada AIR 2003 SC 2713, JT 2003 (1) SC 438, 2003 (1) SCALE 147, (2003) 2 SCC 320 , 2003 (1) UJ 726 (SC). Accordingly it is held that there is absolutely no error in the finding of boanfide need and I comparative hardship recorded by the Appellate Court / First A.D.J. Mainpuri in his judgement dated 20.9.88 through which appeal was allowed and Judgement and order of the Prescribed authority was set aside and release application was allowed.
(3.) This writ petition is pending since 1988. Unfortunately in the year 1999 landlord Mohd. Shafi died. On 8.2.2006 when this writ petition was heard in part by me, I directed the parties to file affidavits in view of the Supreme Court authority reported in K.N. Agarwal v. Dhanraji Devi 2004 (2) A.R.C. 764. In the said authority it has been held that if landlord for whose need alone building is released, dies during pendency of the proceedings (writ petition), then Court (writ court) has to take this fact into consideration. Para 30, 31 and 32 of the said Authority are quoted below: 30. Conjoint reading of Clause (a) of Sub-section (1) and Sub-section (7) of Section 21 makes it clear that where the possession is sought by the randlord on the ground of bona fide requirement and during the pendency of the application, the landlord dies, his legal representatives can prosecute such application on the basis of their own need in substitution of the need of the deceased. 31. In the light of decisions referred to by us, particularly in Hasmat Rai and the provisions of Sub-section (7) of Section 21 of the Act. the High Court has consider the matter and record a finding. 32. For the reasons aforesaid, the appeal deserves to be allowed by setting aside order passed by the High Court. The matter is remitted to the High Court with a direction that the High Court shall consider the subsequentent event of death of both the applicants and also the provisions of Sub-section (7) of Section 21 of the Act in the light of observations made hereinabove and pass an appropriate order in accordance with law after hearing the parties.;