Sibghat Ullah Khan, J. - (1.) THIS is landlords' writ petition arising out of eviction/release proceedings initiated by them against Pyarelal, original tenant -respondent No. 3, since deceased and survived by legal representatives and Pritam Prakash, respondent No. 4. Property in dispute is a shop on the ground floor. In the release application need set up was for petitioner No. 1. It is also admitted to the parties that respondent No. 4 Pritam Prakash was neither doing business from the shop in dispute nor he required the same. Release application was registered as P.A. Case No. 14 of 1981 on the file of Prescribed Authority/Munsif Kairana District Muzaffarnagar. Release application was rejected on 19.4.1984 by prescribed authority. Against the said judgment and order petitioners filed R.C. Appeal No. 38 of 1984. Vth Additional District Judge, Muzaffarnagar through judgment and order dated 16.11.1987 dismissed the appeal, hence this writ petition. It was alleged by the petitioner No. 1 that he was doing business of repair of radios from gallery of his house, which was adjacent to the shop in dispute. It was also stated that for the purposes of his business landlord -petitioner No. 1 had placed some wooden khokha in front of the gallery, however, the same was removed in the year 1976. On the first floor a shop of same dimension as the shop in dispute was available to the landlord in a vacant state which he offered to the tenant. Courts below also found that in the year 1969 -70 a shop, adjoining to the shop in dispute, was constructed and let out to another tenant. Landlords had pleaded that the said shop had fallen in the share of landlord -petitioner No. 2. However, as the said shop was let out about 2 years before filing of the release application, hence it was not at all necessary to decide as to whether the said shop belonged to petitioner No. 1 or petitioner No. 2.
(2.) BOTH the Courts below held that need was not bonafide as landlord was carrying on business from the gallery and that in the year 1969 -70 another shop had been let out to another tenant. With respect to the demolition of wooden khokha in the year 1976, Courts below held that if petitioner had suffered any loss in his business due to removal of the said khokha in the year 1976, he would not have waited for 5 years for filing release application. In respect of alternative shop on the first floor offered by the landlord, Courts below held that the original tenant Pyarelal, respondent No. 3 was aged about 75 -80 years, hence he could not ascend the stairs. Pyarelal has died during pendency of the writ petition and has been survived by two grand sons Rakesh Kumar and Chandra Prakash along with their mother Shrimati Dayal Wati. The difficulty of ascending the stairs has now vanished.
(3.) IN my opinion, on the facts found by the Courts below need of the landlord was fully proved. Appellate Court in the last line of paragraph 9 has held that need of the landlord was not bonafide and hard pressing. The need in order to be bonafide need not be hard pressed. Both the Courts below completely mis -construed the correct meaning and import of the words 'bonafide need'. If the landlord is doing business in a gallery, by no stretch of imagination it can be said that his need for regular shop is not bonafide. It was vehemently argued before the Courts below as well as before this Court that the alternative shop on the first floor could be used by the landlord. In such matter the choice is of the landlord. Out of two shops landlord is entitled to opt for either of them. Tenant cannot dictate the landlord in this regard. For this proposition reference may be made to the following authorities of the Supreme Court. 1. Sarla Ahuja v. United Insurance Company : AIR 1999 SC 100; 2. Chandra Prasad v. U.K. Verma and others : AIR 2002 SC 108; 3. S.N. Kapoor v. B.L. Khatri : 2002 (46) ALR 209.;