Sibghat Ullah Khan, J. - (1.) THIS is landlords writ petition arising out of eviction/release proceedings initiated by them against tenants -respondents Nos. 2 and 3 on the ground of bona fide need under section 21 of U.P. Act No. 13 of 1972 in the form of P.A. Case No. 48 of 1980. Property in dispute is a shop rent of which is Rs. 50/ - per month. In the release application need for landlord -petitioner No. 1 Vinod Chandra was set up who was not having any shop to do business. Prescribed authority/Munsif -Court No. 1 Shahjahanpur through judgment and order dated 12.10.1984 allowed the release application. Against the said judgment and order tenants -respondents filed appeal, which was initially registered as Misc. Civil Appeal No. 164 of 1984 then renumbered as Civil Appeal No. 142 of 1989. Special/Additional District Judge. Shahjahanpur through judgment and order dated 30.9.1989 allowed the appeal set aside the judgment and order of the prescribed authority and dismissed the release application of landlord hence this writ petition by the landlord. Appellate Court found the need of petitioner No. 1 to be genuine however, release application was rejected on, the ground that he could do business from any of the other shops which were available in a vacant State to the landlords or from the shop which was got released by them from another tenant. The only basis for recording the said finding was the affidavit of the tenant. The tenant in para 23 of the written statement, copy of which is Annexure -4 to the writ petition stated that four shops were available to the landlords in which they were tenants. Regarding order of release/eviction in respect of another shop in the said para it was clearly stated by the tenant that in the said shop landlords were tenants and their landlord had got eviction/release order but they were not vacating the same and were continuing with the litigation so that they could remain in possession. It is quite strange that how from the said allegation Lower Appellate Court inferred that landlords had got eviction order against some other tenant.
(2.) THE Supreme Court in G.K. Devi v. Ghanshyam Das : AIR 2000 SC 656 and Dhanna Lal v. Kalawati : 2002 (48) ALR 678 (SC) : AIR 2002 SC 2572 (Para 26), has held that tenanted accommodation available to the landlord cannot be taken into consideration while considering his bona fide need for his own shop. Moreover, the fact that in respect of one of the shops in tenancy occupation of the landlords release order had been passed was an additional ground to release the shop in dispute in favour of landlords -petitioner. Both the Courts below clearly found that tenant was doing several businesses on big scale. Appellate Court held that tenant had six sons who were also to be engaged in business and that tenant had enhanced his business in which his sons were engaged and some of his sons were yet to be engaged. Appellate Court found that: - - It is fully borne out from the evidence on record that the appellant (tenant) is engaged in business of agricultural instruments in addition to the said business of his sons.
(3.) WHILE considering the hardship of the tenant in respect of commercial building the need or hardship of all of his sons, dependants or family members is not to be considered. Both the Courts below found that tenant was having several commercial accommodations in which he was running different businesses either by himself or through his sons. This was more than sufficient to decide the question of hardship against the tenant. Apart from it nothing was brought on record by the tenant to show that he made any effort to search alternative accommodation after filing of the release application. In view of Supreme Court authority in B.C. Bhutada v. G.R. Mundada : AIR 2003 SC 2713 this itself was sufficient to tilt the balance of hardship against the tenant. Appellate Court also held that tenant, had stated in the written statement and averred in the affidavit that landlords had six shops and nine godowns. In para 20 of the written statement tenant stated that landlord had six shops and nine godowns and rental income from the said accommodations was quite sufficient. This squarely meant that all other commercial accommodations of the landlord were let out to other tenants. Such accommodations cannot be taken into consideration while deciding bona fide need of the landlord.;