- (1.) S. U. Khan, J. This is landlord's writ petition. It was earlier allowed by me on 12-5-2005. On the said date no one has appeared on behalf of the tenant-respondent. Thereafter, restoration ap plication was filed which was allowed on 2-12-2005.
(2.) FIRST half of third paragraph of my earlier judgment dated 12- 5-2005 which contains the relevant facts is quoted below: - This writ petition has been filed by the landlord since deceased and sur vived by legal representative. Landlord-petitioner Shanti Lal filed release ap plication on the ground of bona fide need under Section 21 of U. P Act No. 13/72 against Ram Pyare Lal respon dent No. 2 since deceased and sur vived by legal representative. Accom modation in dispute is a house situate in Gorakhpur. In release application it was stated that partition had taken place in between landlord and other co-sharers which was also recognized through the decree passed in a suit as a result of which Shanti Lal had become exclusive owner/landlord of the house in dispute. It was further pleaded that the landlord was residing in his Sasural (house of wife), which was 6 km. from Khalailabad and that the landlord and his wife both were heart patients and intended to reside at Gorakhpur for the purpose of treatment and also for the reason that their two daughters who were married in Gorakhpur coulmake care of them. It was further stated that for want of any accommodation landlord was residing at Gorakhpur in one room kothari, which had been provided by his brother. The Trial Court/prescribed Authority, Gorakhpur before whom the case was registered as P-A. Case No. 14/90 held that the need of the landlord was bona fide. In respect of compara tive lordship it was held that tenant had an ancestral house in Khairdih Tehsil Khajni and tenant and his wife had retired from job. Prescribed Authority al lowed the release application on 31-3- 1992. Against the said judgment and order tenant filed appeal under Section 22 of the Act being Misc. Appeal No. 104/92. District Judge, Gorakhpur by judgment and order dated 18-11-1992 set aside the finding of the Prescribed Authority and remanded the matter for decision afresh. The said order has been challenged by the landlord on the ground that there was no reason for the Appellate Court to remand the matter. The Appellate Court held that original landlord was residing comfortably at Sasural in Khalilabad. Appellate Court also held that whenever original landlord came to Gorakhpur he stayed with his brother hence he had sufficient accommodation at his disposal. Appel late Court further held that Nursing Bahadur brother of the original landlord has not initiated any proceeding for evic tion against him. In my opinion each and every reason given by the Appellate Court is erroneous in law. Residence as licensee is not sufficient to reject the release application on the ground of bona fide need as held by the Supreme Court in M. E. Kshirsagar v. M/s. Traders and Agen cies, AIR 1997 SC 59. It is preposterous to suggest that if a person is residing as a licensee then he cannot initiate eviction proceedings on the ground of bona fide need unless his licensor (real brother in the instant case) initiates eviction proceedings against him. Residence in Sasural is also as licensee. Moreover, it is not respectable for the landlord to reside with the parents and brothers of his wife at his sasural. Landlord had also asserted that he and his wife were heart patients and they visited Gorakhpur regularly for their treatment as Khalilabad the an cestral place of his wife was a town and was about six kilometers away from Gorakhpur. Landlord further pleaded that his two daughters were residing at Gorakhpur along with their husbands and they could help him and his wife in case house in dispute was released and they started residing therein. In the counter affidavit it has been admitted that one of the daughters of landlord is residing at Gorakhpur with her hus band.
(3.) LEARNED Counsel for the tenant has vehemently argued that landlord has died and his widow is quite old hence she is not expected to shift at Gorakhpur as she is residing at her parent's house at Khalilabad. In this regard learned Counsel has placed reliance upon an authority of the Supreme Court in K. N. Agarwal v. Dhanraji Devi, 2004 (57) ALR 419 (SC) : 2004 (23) AIC 31 (SC ). In the said authority release application was filed for com mercial need of the landlord who died thereafter. The Supreme Court there fore held that the need for which release application was allowed had vanished and unless the heirs of the landlord proved their need, release order could not be sustained. In the instant case landlord had pleaded need for himself and his wife. Wife is still alive. The older the person becomes the more he or she requires medical facilities. At least one of the daughters of the widow of the original landlord who has now been substituted at the place of the landlord is residing at Gorakhpur along with her husband. The widow of the original landlord can therefore very well reside at Gorakhpur in the house in dispute under constant care and attention of the daughter and receive proper medi cal treatment. Even after the death of the husband a lady is fully justified to reside in the house loft behind by her husband than the house of her parents particularly in Indian society. Just as landlord has died similarly tenant has also died. Tenant was himself having his ancestral house in Khairdih Tahsil Khajni. Tenant and his wife had retired when release application was filed. The tenant had not as serted that he required the house for his sons (original tenant respondent No. 2 Ram Pyare Lal has died during penden cy of the writ petition and has been sub stituted by four sons and his widow ).;