S.U. Khan, J. - (1.) Heard learned Counsel for the parties.
(2.) This writ petition by the tenants was allowed by me on 8.11.2005 without hearing any one on behalf of landlady respondent No. 3. There after rehearing application was filed on behalf of landlady, which was allowed on 27.2.2006 and on the said date arguments of the learned Counsel for both the parties on the merits of the writ petition were heard and judgment was reserved. Second, third and fourth paragraphs of the earlier judgment dated 8.11.2005, which contained necessary facts of the case, are reproduced below : "2. The three petitioners were tenants of three different but adjoining shops. Respondent No. 23, Miss Manjula Gupta, filed release application under Section 21 of U.P. Act Mo. 13 of 1972 against the three petitioners. Prescribed Authority Court No. 1, Etawah through judgment and order dated 18.8.1984 allowed the release application (Annexure 6, which is copy of the order of Prescribed Authority, does not contain number of the case). Against the said judgment petitioners filed P.A. Appeal No. 74 of 1984. Appeal was dismissed by District Judge, Etawah through judgment and order dated 17.10.1985, hence this writ petition. 3. During pendency of writ petition, petitioner Nos. 1 and 2 Maharaj Singh and Shyam Lal died and shops in their possession were handed over by their legal representatives to the respondent No. 3. According to the supplementary affidavit, filed by petitioner No. 3, sworn on 26.4.2005, the said two shops have been let out by the landlady to other persons on monthly rent of Rs. 500/- and Rs. 800/-. Learned Counsel for the petitioners states that he has received copy of counter-affidavit to the said affidavit. However, no counter-affidavit is available on record. Accordingly, the allegations in the supplementary affidavit is taken to be correct. 4. If after vacation of two shops landlady respondent No. 3 let them out to other tenants, then it cannot be said that her need was bona fide. Accordingly, writ petition is allowed. Both the impugned judgments and orders are set aside.
(3.) Earlier a counter-affidavit was filed by Kumari Chitra Dixit, learned Counsel on 27.9.2005. Thereafter another counter-affidavit was filed on 21.12.2005 by Sri N.B. Nigam, learned Counsel for landlady respondent No. 3. In the second counter-affidavit it was admitted that properties in tenancy occupation of petitioner Nos. 1 and 2 had been vacated by them/their legal representatives and landlady had got possession of the said shops. However, the assertion of the tenants that the said shops had again been let out, was denied. It was also stated that in a partition suit in between the landlady and her brothers, landlady got the shops in dispute along with one more shop and a small house bearing number 21 Mohalla Lohamandi, Jaswant Nagar, District Etahwah. It was also stated that the said house was quite small and in a dilapidated condition and in possession of tenants, hence landlady sold the same on 2.8.2005. It was also stated that Babali was tenant of a small shop, which came in the share of Ashok Kumar Gupta in the partition, which was also recognised through decree passed in Original Suit No. 27 of 1979 It was specifically denied that any person by the name of Kailash was inducted as tenant by the landlady. It was also stated that Ashok Kumar Gupta, brother of the landlady, converted the Pump house, which had come in his share on partition, in to a small shop and let that out to another tenant, who was selling wine and bear from the said shop. In view of the above it is quite clear that landlady did not let out any shop after its vacation it was stated that tenant-petitioner No. 3, Radha Krishna, is aged about 85 years and is not doing any business from the shop in dispute and his three sons are employed out side Jaswant Nagar, where the property in dispute is situate.;