P. Dayal, J. - (1.) THIS writ petition has been filed by Husaini Dhobi for quashing the order dated 20.9.1980 passed by IInd Addl. District Judge, Lucknow, contained in Annexure -6, and for directing the IInd Additional District Judge, Lucknow, not to execute his order dated 20.9.1980. The dispute relates to a portion of house No. C -42/62, situated at Nawab Asghar Husain Road, Lala Umrao Singh Park, Narhi, police station Hazratganj, Lucknow. The petitioner, Husaini Dhobi, has been a tenant in a garage and adjoining small kothari with door having no shutter since the year 1960 at the rate of Rs. 20/ - per month. The opposite party No. 2 Thakur Avinashi Singh purchased this house on 10.3.1966. The landlord opposite party No. 2 moved an application under Section 3 of the U.P. Act No. III of 1947 against the petitioner which application was subsequently converted as an application under Section 21 of the U.P. Act No. XIII of 1972. He had pleaded in his application under Section 21 of the Act that he was earning his livelihood by taking up private tuitions and he grew old and he intended to start his own business in the garage which has been in the occupation of the petitioner, and that his wife collected Rs. 5,000/ - for running that business by selling her flour mill at Hardwar. He further pleaded that the petitioner constructed a 'Bhatti' in the premises in question which was a source of nuisance and it has been unhygienic. The petitioner filed written statement contending that the need of the landlord has not been genuine and he wanted to enhance rent to which the petitioner did not agree, he being a poor washerman.
(2.) THE prescribed authority dismissed the application of the landlord on 21.5.1976 against which he filed an appeal which was allowed on 20.9.1980, hence this writ petition. During the pendency of the appeal, the appellant moved an amendment application for showing that he wanted to start a coaching institute in the disputed garage. The petitioner challenged the impugned judgment dated 20.9.1980 on the ground that the landlord changed the nature of his case by amending his pleading and by pleading his case that he wanted to start a coaching institute in the disputed garage, the amendment was sought mala fide and it was not a business, one big room on the ground floor of the house in question is occupied by one K.P. Singh, a relative of the landlord, the provisions of Section 21 have been misconstrued by the appellate court, the need of the tenant was comparatively more than that of the landlord as the petitioner's family consists of ten members, and that residential premises could not be converted for commercial purposes.
(3.) THE relevant portion of Section 21 reads as follows: 21. (1) The prescribed authority may, on an application of the landlord in that behalf order the eviction of tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists, namely - - (a) .. .. .. (b) .. .. .. Provided also that no application under Clause (a) shall be entertained - - (i) .. .. (ii) in the case of any residential building, for occupation for business purposes. It can be the landlord who has to move an application under Section 21 of the Act for eviction of a tenant. Therefore, it was wrongly contended on behalf of the opposite party No. 2 that there was no bar for a landlord, to convert premises from residential to commercial purposes. Rather, the aforesaid provision lays down that an application for occupation for business purposes by the landlord in the case of any residential building is not entertainable. It is under Section 20(2)(d) that a suit for ejectment of a tenant can be filed, if the tenant has, without the consent in writing of the landlord, used the same for purpose other than the purpose for which it was admitted to tenancy of the building or otherwise done any act which is inconsistent with such use. In the Act the landlord has not been permitted to convert his building from a residential premises, for commercial use after getting it vacated from the tenant. In the instant case the petitioner has been using the garage for residential purpose along with his family. As such, an application for his eviction from the disputed premises on the ground of intended use of the disputed premises for commercial purpose is not maintainable.;