- (1.) SANJAY Misra, J. The respondent No. 1 herein is the landlord of flat No. 10 forming part of house No. 118/181 Kunj Bihari, Kaushalpuri, Gomti No. 5, Kanpur Nagar. The said flat is in the tenancy of the petitioner who has succeeded from her late husband. The respondent No. 1 is living in an ancestral house No. 74/142 Dhankutti, Kanpur with his parents and other co-sharers of the Hindu Undivided Family where a family partition took place by virtue of an award of arbitrator in the year 1984. The father of respondent No. 1 was allotted certain share in the ancestral house and the respondent No. 1 was allotted the flat in question. However, respondent No. 1 continued to live with his father and moved an application under Section 21 (1) (a) of U. P. Act No. XIII of 1972 on 12-7-1996 for release of the flat in question in his favour. The matter was contested before the prescribed authority and a report of the Advocate Commissioner dated 5-3- 1998 was also obtained. The prescribed authority rejected the release application of respondent landlord mainly on the ground that he had a share in the ancestral house and, therefore, he cannot be said to be living with his father as a licensee. Feeling aggrieved, the respondent landlord filed Rent Appeal No. 99 of 1999 under Section 22 of the Act which has been allowed by the lower appellate Court by the judgment and order dated 17-5- 2000. The tenant has challenged the said judgment and order by means of this writ petition.
(2.) PLEADINGS of the parties have been exchanged in the form of affidavits. Heard Sri Arvind Srivastava and Sri S. C. Srivastava learned Counsel for the petitioner and Sri Anoop Trivedi learned Counsel appearing on behalf of respondent No. 1. The points raised by the learned Counsel for the petitioners are as noted hereunder: (1) That the impugned judgment and order is liable to be set aside in view of non-compliance of the provisions of Rule 16 (1) (d) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 and therefore, the matter should be remanded back to the Court below for re-considering the release of part portion in favour of the landlord. (2) During the pendency of these proceedings the landlord's father has died on 17-2-2000 and therefore, the findings recorded by the lower appellate Court to the effect that respondent No. 1 is living as licensee with his father does not stand any more since the respondent landlord is now in possession of a part of the ancestral house in his own right. (3) The lower appellate Court after finding the need of the landlord to be bona fide has failed to record any finding on the comparative hardship between the parties.
(3.) LEARNED Counsel for the petitioner has placed reliance upon a decision of the Hon'ble Supreme Court in the case of Smt. Raj Rani Mehrotra v. II Addl. District Judge and Ors. , reported in 1980 ARC page 311, and has contended that when the plea of Rule 16 (1) (d) was raised before the High Court then even if it was not raised before the Court below the same should be considered or if evidence is required the matter should be remanded back to the trial Court for leading fresh evidence. Learned Counsel for the petitioner has also placed reliance on a decision of this Court in the case of Kuldeep Rai Suri and Anr. v. Dr. D. S. Khanna and Anr. , reported in 1982 (2) ARC 45, for the same preposition and contended that this Court had permitted the petitioner therein to raise the plea of part release before the High Court although the same was not raised before the Court below. He has also cited a decision of this Court in the case of M/s. Nandeo Ram and Sons and Anr. v. III Addl. District Judge, Varanasi and Ors. , reported in 1996 (2) ARC 27, and argued that it is the duty of the Court to consider the question of part release if the need of the landlord can be satisfied by releasing only a part of the building under tenancy. He has also relied upon a decision of this Court in the case of Satya Pal Jain v. Ist Addl. District Judge, Meerut and Ors. , reported in 1982 (2) ARC 284, and has contended that non-compliance of Rule 16 (1) (d) vitiates the decision even if the tenant has failed to raise that aspect before the Court below.;