- (1.) BY means of this writ petition, moved under Article 226 of the Constitution of India, the petitioners (ten ants) have challenged the judgement and orders dated 04-0/-1998 (Annexure 1) passed by District Judge, Pauri Garhwal and judgment and order dated 12-04-1996 (Annexure 2) passed by the Pre scribed Authority/civil Judge (Jr. Di vision), Kotdwar, District Pauri Garhwal, whereby the shop in question has been released in favour of the landlord- respondent No. 3.
(2.) BRIEF facts of the case, as nar rated in the writ petition, are that respondent No. 3 is landlord of the shop in question,-who moved an application under Section 21 (1) (a) the U. P. Urban Buildings (Regulation of Lettings, Rent and Eviction) Act, 1972, for release of the shop situated at Station Road, Kotdwar. The land lord sought release of the shop with the allegations that he needs the shop which is in the tenancy of the peti tioners on the ground that his mar ried son has to run his business there. The petitioners (tenants) contested the application before authorities be low challenging the bonafide need of the landlord. It was also pleaded by the tenants that there is no alterna tive accommodation available for them where they can shift their busi ness. It was further pleaded that ear lier also a Small Cause Court suit was also instituted for eviction of the pe titioners on the ground of sub letting and material alterations, but the same was dismissed by the Small Cause Court, and, revision against it was also dismissed. After taking evidence of the parties and hearing them, the Prescribed Authority passed the order dated 12-04-1996 releasing the shop in question in favour of the landlord. Aggrieved by said order, the petition ers filed an appeal under Section 22 of the aforesaid Act before the District Judge, Pauri Garhwal, which was also dismissed vide order dated 04-0/-1998. Hence, this writ petition. In the counter affidavit before this Court, respondent No. 3 (landlord) has admitted that earlier S. C. C. Suit No. 04 of 1975 was filed by him. In this connection, it is stated in the affidavit that the petitioners pleaded in that case that shop in question could not have been partitioned or materially altered estoppes him from taking the plea that the shop can be partitioned and the need of the land lord can be satisfied by partitioned portion of the shop in question. In the counter affidavit, it is further stated that both the courts below, have given concurrent findings of fact as to the bonafide need of the landlord and greater comparative hard ship in favour of landlord. It is further alleged that during the pendency of proceedings the tenant has got an other shop in the vicinity of the shop in question but they have not shifted their business in said shop. I heard learned counsel for the parties and perused the record.
(3.) BEFORE further discussion, it is pertinent to mention here, that impugned order passed by respondent No. 1 shows that the petitioners have suggested before lower appellate court that the shop in question can be divided and the landlord's son can start his business in half portion of the shop in question. However, it ap pears that the lower appellate court did not give any categorical finding if it is possible and if it satisfies the need of the landlord. The order dated 12-04-2002, passed by this Court, further indicates that the petitioners before this in of the shop in question. The said order of this Court is being reproduced be low: "learned counsel for the petition ers made statement at Bar that petitioners shall handover possession to the respondent/landlord, which they have offered voluntar ily to the respondent/landlord in the trial court, within a week from today. The learned counsel for the re spondent/landlord also accepted the said proposal. After the ac commodation is handed over to the respondent/landlord, the only question will be left to be seen as to whether accommodation handed over to the respondent/landlord caters the bonafide need or not? Put up on 23-04-2002. Certified copy of this order be is sued today to the parties on payment of necessary charges. Sd/- P. C. V. , J. " Learned counsel for the parties admitted before this Court, that half portion of the shop as undertaken by the petitioners, have been handed over to the respondent No. 3 and his son has started his business in half portion of the shop. As such, the only question remains to be seen by this Court, is whether that satisfied the need of the landlord or not? In the supplementary affidavit before this Court, the petitioners have stated that half portion of the shop handed over to the respondent No. 3, is insuffi cient for running the businesses by his son. However, learned counsel for the petitioners argued that both, the petitioners and son of respondent No. 3, are running their business in the portions in their occupation, without any problem.;