- (1.) S. U. Khan, J. This is landlady's writ petition arising out of evic tion/release proceedings initiated by her against original tenant Sheo Badan who died during pendency of release proceedings and was substituted by respondents 2 to 8 on the ground of bona fide need under Section 21 of U. P Act No. 13 of 1972 in the form of RA. Case No. 90 of 1982 on the file of prescribed authority ill Additional Civil Judge, Varanasi.
(2.) THE property in dispute is a shop rent of which is about Rs. 15 per month. Landlady pleaded that she re quired the shop in dispute for one of her three sons i. e. Bhola. It was further pleaded that husband of the landlady was tenant in shop No. CK 19/21, Thatheri Bazar, Varanasi who had died and from the said tenanted shop Rajendra and other son of the landlady was doing business. It was also stated that apart from Rajendra and Bhola landlady had another son Lalji whose name had been entered as tenant of the shop, which was in the tenancy occupa tion of the deceased husband of the landlady. It was also stated that even though name of Lalji was entered as tenant of the shop in tenancy occupation of the deceased husband of the landlady however in fact Rajendra was doing business there from. Prescribed authority allowed the release applica tion through judgment and order dated 13-2-1985. Prescribed authority held the need of the landlady to be bona fide and further held that balance of hardship lay in favour of the landlady, as tenant did not make any effort to search alternative accommodation. Prescribed authority also noted that the landlady had suggested that tenants could shift their business to their residential house at Mahmoorganj and at present they were carrying on very nominal business from the shop in dispute. Against the judgment and order passed by the prescribed authority tenants filed Rent Appeal No. 68 of 1985. IX Additional District Judge, Varanasi allowed the ap peal through judgment and order dated 30-8 1988, set aside the judgment and order passed by the prescribed authority and dismissed the release ap plication of the landlady hence this writ petition by the landlady. 4. Appellate Court held that in the shop in which deceased husband of the landlady was tenant both Lalji and Rajendra were carrying on their busi ness. The Appellate Court was utterly wrong in law; firstly as held by the Supreme Court in G. K. Devi v. Ghanshyam Das, AIR 2000 SC 656 and Dhanna Lal v. Kalawati Bai, AIR 2002 SC 2572, para 26 : 2002 (48) ALR 678 (SC), a tenanted shop with the landlord can not be taken into consideration while deciding his bona fide need for his own shop which is in the occupation of the tenants; secondly, every adult male member of landlord's family is entitled to independent, separate business as held by the Supreme Court in Sushila v. A. D. J. , 2003 (52) ALR 160 : 2003 (9) AIC 156 (SC) and A. Kumar v. Mustaquim, AIR 2003 SC 532. 5. Appellate Court further held that some shops were let out by the landlady to other tenants after Sheo Badan came into possession of the shop in dispute as tenant. This fact was also irrelevant, as other shops had been let out to other person much before filing of the release application. Out of several tenants, landlady may file release application against any one of them. The choice is of the landlady and in this regard he cannot be dictated by the tenant against whom she opts to file release application. 6. Appellate Court also held that Bhola son of the landlady was doing some sundry job of selling goods to shopkeepers. Firstly, in this regard there was no cogent reliable evidence on record, secondly, such type of sundry job does not mean that the per-son doing such job does not bona fidely require shop for establishing his regular business. Even for the type of job, which according to the tenant Bhola was carrying on, shop was required. 7. In my opinion therefore, the find ing of the Appellate Court that need of the landlady was not bona fide to settle her son Bhola in the business from the shop in dispute is utterly erroneous in law and liable to be set aside. 8. In respect of comparative hardship Appellate Court held that tenant was political sufferer and was getting Rs. 400 per month pension in lieu of his sufferings. Appellate Court also recorded a finding that tenant had constructed a residential house in Mahmoorganj colony. Naturally the tenant must have earned the money to con struct the house from the business car ried out from the shop in dispute. From the said money the tenant could have constructed the shop also. It has been held by the Supreme Court in B. C. Bhutada v. G. R. Mundada, 2006 (63) ALR 438 (SC), that after filing of the release application tenants shall make efforts either to purchase or to take on rent another accommodation. Landlady's allegation that tenant could shift his business of selling colours which he was carrying on from the shop in dispute to his residential house was, not seriously denied. The only thing which was asserted by the tenant and believed by the Appellate Court was that in case tenant shifted his business to his residential house he would be suf fering loss of goodwill. The loss of good will can be compensated by awarding damages to the extent of two year's rent as provided by second proviso to Sec tion 21 (1) of the Act (prescribed authority awarded damages of Rs. 300 to the tenant ). In any case the tenant did not show that what efforts he made to search alternative accommodation. This aspect was taken to consideration by the Trial Court while deciding the question of comparative hardship in favour of the landlady. The lower Appel late Court completely overlooked the said aspect. 9. Accordingly, I hold that finding of bona fide need and comparative hardship recorded by the Appellate Court against the landlady are utterly erroneous in law. 10. Sri A. K. Singh learned Counsel for the landlady petitioner filed rejoinder affidavit which was sworn on 24-2-2005, copy of which was given to the learned Counsel for the tenant on 12-12- 2005. Learned Counsel far the tenants respondents stated that the previous Counsel Sri Ravi Kiran Jain had also given a copy of rejoinder affidavit to him on 6-2-2005, which was sworn on 4-2-2c05. The said rejoinder affidavit was not on record hence learned Counsel for the tenant respondent was directed to supp ly duplicate copy of the same. Learned Counsel for the tenant has placed great reliance on para 11 of copy of rejoinder affidavit sworn on 4-2-2005 (original of which is not on record ). In the said para, it has been stated that "bhola one son of the petitioner has got a shop and the two alleged shops which were in possession of Jai Kishan and Ram Surat Singh are nothing but godowns which were being used by the tenants only for keeping their material or raw material and the same cannot be used in the form of shop also on account of the fact that they exist in the middle of the house which consists of shops in dispute. " In the rejoinder af fidavit, which has been filed on 24-2-2005 almost same thing has been said. The only difference is that in the said rejoinder affidavit, it has been stated that in the room vacated by Ram Surat, Raju son of Bhola is doing seasonal business. In the said rejoinder affidavit, which has been filed it is stated that Lalji son of landlady has got five sons, Bhola second son of landlady has got three sons. It has also been stated that the ages of all the seven grandsons of landlady are in between 20-30 years. Even if it is held that Bhola has got some accommodation, it will not make much difference as need for Lalji and Rajendra still persists. 11. Accordingly, writ petition is al lowed. Judgment and order passed by the lower Appellate Court is set aside. Judgment and order passed by the prescribed authority is restored. 12. Tenants-respondents are granted six months time to vacate provided that: (1) with in one month from today they file an undertaking before the prescribed authority to the effect that on or before the expiry of period of six months they will willingly vacate and handover possession of the property in dispute to the landlady petitioner. (2) For this period of six months which has been granted to the respon dents to vacate they are required to pay Rs. 5,700 (at the rate of Rs. 1,000 per month and after deducting Rs. 300 awarded as damages by prescribed authority) as damages for use and oc cupation. This amount shall, also be deposited with in one month before the prescribed authority and shall immedi ately be paid to the landlady-petitioner. It is further directed that in case un dertaking is not filed or amount of Rs. 5,700 is not deposited with in one month then tenants respondents shall be liable to pay damages at the rate of Rs. 2,000 per month since after one month till the date of actual vacation. Similarly, if after filing the aforesaid undertaking and depositing Rs. 5,700 the property in dispute is not vacated on or before six months the/i damages for use and occupation shall be payable at the rate of Rs. 2,000 per month since after six months till actual vacation Petition allowed. .;