Sibghat Ullah Khan, J. - (1.) THIS writ petition was allowed on 25.5.2005. On the said date no one had appeared on behalf of tenant respondent. Thereafter rehearing application was filed on behalf of tenant respondent No. 3 Sukh Ram. Rehearing application is allowed. This writ petition has been filed by the landlord against the judgment and order dated 23.2.1985, passed by IVth Additional District Judge, Aligarh dismissing U.P.U.B. Appeal No. 42 of 1979.
(2.) THE matter arises out of release proceedings initiated by original petitioner landlord Dina Nath Chaturvedi. Earlier also the matter had come to this Court in the form of Writ Petition No. 2273 of 1980 and the said petition was allowed on 5.9.1983 and matter was remanded to the Appellate Court to consider in the changed circumstances as to whether Vyas Ji Chaturvedi was still prepared to do ghee business in the premises in dispute. The Appellate Court decided the matter against the landlord mainly on the ground that Vyas Ji Chaturvedi was employed in some school. In the counter -affidavit filed in this writ petition, it was stated in Para 7 that Vyas Ji Chaturvedi had shifted to Haridwar and had secured very lucrative job there in a good educational institution and was drawing salary of Rs. 1400/ - per month. Even the name of the institution was not mentioned. If for want of an accommodation a person is not able to start business and joins some service as stop gap arrangement, this fact can not be taken to nullity or mitigate the need. Tenant also pointed out that shop No. 334 was available to the landlord. Landlord asserted that the said shop was very small and was being used as godown. Lower Appellate Court wrongly held that for doing ghee business, big shop is not required. The other shop pointed out by the tenant bearing No. 337 was merely a room of a residential house of the landlord who was using the same for his palmistry/astrology business. If due to paucity of accommodation a room of a residential house is used for receiving clients, it can not be said that for all times to come, it becomes commercial in nature. Landlord has died. Vyas Ji Chaturvedi can not be compelled to use the said room as shop. In respect of comparative hardship tenant did not make any efforts to search alternative accommodation after filing of the release application. This fact was sufficient to decide question of hardship against the tenant. When earlier writ petition was allowed by me, I had placed reliance upon the following authorities of the Supreme Court: - - 1. R. Kumar v. Firm P. Machinery, : AIR 2000 SC 534 2. Sarla Ahuja v. U.I. Insurance Company, : AIR 1999 SC 100 3. Ramkubai v. H.D. Chandak,, AIR 1990 SC 3089 4.G .C. Kapoor v. A.D.J.,, AIR 2002 SC 200. 5.B .C. Bhuiada v. G.R. Mundada, : AIR 2003 SC 2713 Siddalingama v. M. Shenoy., 2002(46) ALR 18
(3.) All the above authorities are quite relevant for this judgment also.;