- (1.) S. U. Khan, J. As per office report dated 23-3-2006 service upon the respondent No. 2 the only contesting respondent is sufficient under Chapter VIII, Rule 12 of the Court. Apart from it on 10-2-2006 petitioner was directed to serve respondent No. 2 by giving intimation to learned Counsel for respondent No. 2 in SCC Suit No. 85 of 1995 pending before JSCC, Varanasi. An application annexing therewith some documents has been filed including certified copy of the order dated 21-2-2006 passed by JSCC, Varanasi in SCC Suit No. 85 of 1995 mentioning therein that such intimation had been given to Raj Kumar Bahal tenant- respondent No. 2. Accordingly, service upon respondent No. 2 is quite sufficient. Inspite of sufficient service no one has appeared on behalf of tenant-respondent No. 2.
(2.) THIS is landlord's writ petition arising out of eviction/release proceedings initiated by him against tenant- respondent No. 2-Raj Kumar Bahal 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. 94 of 1998. Prescribed authority/ist Additional Civil Judge, Varanasi through judgment and order dated 20-2-1995 allowed the release application. Against the said judgment and order tenant-respondent No. 2 filed Rent Appeal No. 117 of 1995. Xth A. D. J. , Varanasi through judgment and order dated 5-3-1998 allowed the appeal, set aside the judgment and order passed by the Prescribed Authority and dismissed the release application of the petitioner-landlord hence this writ petition. Appellate Court held that the landlord was residing as licensee with his brother R. H. Arora hence his need was not bona fide. Supreme Court in Mrs. Meehal Eknath Kshirsagar v. M/s. Traders and Agencies, AIR 1997 SC 59, has held that residence of landlord as licensee cannot be taken into consideration while considering his bona fide need for his own house in possession of a tenant. Appellate Court also wrongly held that landlord could not prove his need as he did not file affidavit of any other person and his own affidavit was not believable as he was interested party. In respect of bona fide need the best evidence is the evidence of landlord and the tenant himself. In respect of comparative hardship Prescribed Authority had held that financial condition of the tenant was quite good and he did not make any effort to search alternative accommodation after filing of the release application hence question of hardship was decided against the tenant. Appellate Court held that landlord did not show that in Varanasi city houses were available on rent. It was not the duty of the landlord to search alternative accommodation for the tenant. Even otherwise the observation is quite wild. Accordingly, I hold that the judgment and order passed by Appellate Court is patently erroneous in law and is liable to be set aside.
(3.) WRIT petition is allowed. Judgment and order passed by the Appellate Court is set aside and that of trial Court is restored. However, as no one has appeared an behalf of tenant hence before issuing writ of possession (parwana dakhal) on the execution application of the landlord which may be filed under Section 23 of the Act in pursuance of this judgment. Prescribed Authority shall issue notice to the tenant. The tenant shall be liable to pay damages for use and occupation at the rate of Rs. 1,000 per month with effect from the date of service of the said notice till actual vacation. Petition allowed. .;