K.C.Agarwal, J. - (1.) RAM Din, the respondent No. 3, is the owner of the shop in dispute situated in Mohalla Poorani Sabji Mandi, Kachia Road, Budaun. An application under Section 21 of U.P. Act No. 13 of 1972 was filed by him against the petitioner for the release of the aforesaid shop with the allegation that he had no son of his own and had daughter's sons who were living with him. These grandsons, were in fact, members of his family and were being treated as such. Since they had come up of age, he intended to provide them some business. For that purpose, he required the shop in question. He asserted that the need of making provision for the laughter's son, being his own, new as entitled to the release of this ' shop under Section 21 (1) (a) of the Act.
(2.) THE application was contested by the petitioner. He denied that the shop was required by the respondent No. 3 for his use and occupation. It was alleged by him that as the daughters' son are not 'family members' with the meaning of Section 3(g) of U.P. Act No. 13 of 1972, the application filed by the respondent No. 3 for the release of the premises was not maintainable. The petitioner also alleged that the firm which was constituted in 1966 did not include any person who was not a member of his family and that he would suffer greater hardship if the application filed by the respondent No. 3 for the release of the premises was allowed. After perusal of the needs of the petitioner and that of the respondent No. 3, the Prescribed Authority held that as the sons of the daughters of the respondent No. 3 were not included in the definition of the word 'family members' the application made by the respondent No. 3 for their need was not maintainable. He also held that the petitioner was likely to suffer greater hardship from the acceptance of the application than that would be suffered by the landlord by its rejection. On these findings the application was rejected. The respondent No. 3 preferred an appeal before the District Judge. The same was allowed by Sri V.S. Agarwal, IIIrd Additional District Judge, Budaun by his judgment dated August 13, 1974. Feeling aggrieved, Shyam Das, the tenant, has come to this court by means of the present writ petition. The submission made by the learned counsel for the petitioner was that the application filed by respondent No. 3 was one under Section 21 of U.P. Act No. 13 of 1972, therefore, the learned District Judge could not treat the said application as one under Section 16 of the said Act. The submission made by the learned counsel for the petitioner is well founded. Admitted the application was filed by the respondent No. 3 under Section 21 (1) (a) for the release of the accommodation on the ground that the premises was required by him. This was contested by the petitioner on the ground that the need of the respondent No. 3 was not bona fide and genuine. Taking the application as one under Section 21 of the said Act, the parties led evidence in support of their respective versions. The Prescribed Authority also proceeded to decide it as one under Section 21. It was not open to the District Judge to create a new case for the respondent No. 3 and to treat the application filed under Section 21 as one under Section 16. It appears from paragraph 26 of the writ petition that the power to decide an application filed under Section 16 of the Act had been conferred in Budaun by the Rent Control and Eviction Officer, whereas the power to decide the applications under Section 21 was on a different authority. Hence the application filed by the respondent No. 3 could not be treated as one under Section 16 on this ground as well.
(3.) IT is possible, as urged by Sri Shanti Bhushan, counsel for the respondent No. 3 that some of the considerations for deciding an application under Section 21 and one filed under Section 16 (2) are overlapping but this did not entitle the District Judge to treat the application filed under Section 21 as one under Section 16. The petitioner's cause has definitely been prejudiced by the creation of a new case by the Additional District Judge, which has not been taken by the respondent No. 3. One can legitimately presume that the petitioner would have filed different evidence, had he known that respondent No. 3 wanted his eviction under Section 16 of the Act by taking help of Section 12 of the same. In my view, therefore, the Addl. District Judge had no authority to treat the appeal, filed before him as one arising out of application under Section 16. He ought to have treated it as an appeal against the order passed under section 21. Assuming that the application tiled by the respondent No. 3 could be treated as one filed under Section 16 of the Act, 1 find another error which has creeped into the judgment of the learned District Judge. This error, to my mind, is sufficient in itself for allowing the writ petition. The same was not the learned District Judge wrongly held that the shop to be vacant by applying Section 12(2) of the said Act. The question of applicability of Section 12 (2) of the Act depends on its construction, the same reads as under; "In the case of non-residential building, where a tenant carrying on business in the building admits a person who is not member of his family as a partner or a new partner as the case may be, the tenant shall be deemed to have ceased to occupy the building." ;