S.U. Khan, J. - (1.) In spite of sufficient service no one has appeared on behalf of substituted legal representative of respondent no.3.
(2.) This is landlady's writ petition arising out of eviction/release proceedings initiated by her on the ground of bonafide need under Section 21 of U.P. Act No.13 of 1972 against the original tenant-respondent no.3 (since deceased and survived by legal representatives) in the form of P.A. case no.27 of 1985. Prescribed authority/IInd Additional Civil Judge, Varanasi through judgment and order dated 4.5.1988 allowed the release application. Against the said judgment and order original tenant-respondent no.3 filed Rent Civil appeal No.98 of 1988. IX A.D.J., Varanasi through judgment and order dated 21.7.1989 allowed the appeal, set aside the judgment and order of the Prescribed authority and dismissed the release application hence this writ petition.
(3.) Property in dispute is commercial in nature. Landlady pleaded that she required the accommodation in dispute to settle one of her three sons i.e. Kailash Goenka in business. Tenant asserted that Kailash Goenka was doing some business. Before filing of the release application husband of the landlady had died. It appears that there was a family firm by the name of Sri Krishna Prahlad and Brothers in which Kailash Goenka was a sleeping partner having 20% share. The said firm was carrying on business from C.K. 59/48, Nichi Bagh Sahar, Varanasi which was in tenancy occupation of Satya Narain or his wife. (the names of three sons of landlady are Prahlad Goyanka, Satya Narain Goyanka and Kailash Goyanka). On 10.11.1986 an objection was filed by the tenant in which it was stated before Trial Court that during pendency of release application Kailash Goenka had started the business of selling Toptron T.Vs. Landlady pleaded that the said business was being carried out by the aforesaid firm Shri Krishna Prahlad Rai and Brothers and that the said business had also been closed as production of Televisions by the said name had stopped. Appellate court mainly allowed the appeal on the ground that appellant Kailash Goyanka was engaged in some business i.e. business of selling Toptron televisions and landlady had concealed the said fact. Firstly, there was no concealment as even according to the tenant said business had been started during pendency of release application hence there was no occasion for the landlady to disclose the said business in her release application. Secondly, the said business was the business of the firm in which Kailash Goyanka was sleeping partner and having only 20% share. Thirdly the said business was being carried out from a tenanted accommodation in tenancy occupation of Satya Narain or his wife. Supreme Court has held in Shushila v. A.D.J., AIR 2003 SC 780 : 2003 (9) AIC 156 : 2003 (52) ALR 160 and A. Kumar v. Mustaquim, AIR 2003 SC 532 , that every adult family member of landlord is entitled to start separate independent business. No family member can be compelled to participate in the family business or the business of his father or brother. The Supreme Court has also held in G.K. Devi v. Ghanshyam Das, AIR 2000 SC 656 , that a tenanted accommodation with the landlord cannot be taken to be a suitable alternative accommodation available to him while considering his bonafide need for his own shop in tenancy occupation of another tenant. ;