D.S. Bajpai, J. - (1.) SUGARCANE Singh, the Petitioner in the present writ petition, has approached this Court Under Article 226 of the Constitution of India, inter alias, praying for issuance of a writ of certiorari to quash the impugned orders contained in annexure 9 and 11 to the writ petition and also with the usual prayer of issuance of any other appropriate writ, order or direction to which he is found entitled. Brief facts giving rise to the writ petition are that the Petitioner, as he alleges, is a retired Military Personnel and after Lies retirement he along with his family purchased two old trucks on hire purchase and carried on the business of transportation of goods. He entered the ground floor of house No. 279/84 situate at Planarian, Police Station Naka Handle, Herbage, Lucknow. The house in question belongs to the opposite party No. 3, Parameter Singh, who is the owner land -lord of the said house. It so transpires that the landlord, Parameter Singh, filed an application for release Under Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) before the Prescribed Authority, opposite party No. 2 to the Writ Petition, on 2nd July, 1980 alleging, inter alias, that he was occupying the first floor of the accommodation of the said house and in view of the fact that he had been recently married and he had in his possession on the first floor only two rooms which were totally insufficient to meet his requirements inasmuch as his family besides consisting of himself and his wife had aged parents and it was difficult to manage a decent living in the said accommodation. Equal emphasis was laid by the landlord in his application that his father was an old person (60 years of age at the time of filing of the application) and that his mother was a patient to angina and high blood pressure and it was not only dangerous but difficult for her to live on the first floor against the medical advice. The landlord also pleaded in paragraph 12 of his application for release (Annexure -1) that "the family of the opposite party consists of self, wife and 3 sons. The two sons of the opposite party are the earning members. The opposite party has thus means to shift to any other house and has capacity to pay higher rent also. "The landlord, Parameter Singh, stated that accommodation in occupation of the contesting opposite party., Sugarcane Singh, was bonfire required by him for his use and occupation and he undertook not to let it out to (?) Accommodation in favor of the landlord the tenant was not to suffer any loss or inconvenience. The contesting opposite party, the tenant, contested the application for release and filed a written statement. In reply to the averments of paragraph 12 of the application for release the contesting opposite party made a bare denial and indicated the size of his family as 10. The matter in controversy is in a very narrow ambit and it may be stated that this Court in exercise of its jurisdiction Under Article 226 of the Constitution of India would not interfere with findings of fact and would refrain from entering into any disputed question of fact.
(2.) LEARNED Counsel for the Petitioner, Sri Hider Abbes, has attacked the order of the Prescribed Authority dated 12th December, 1983 by which he allowed the application for release of the landlord and granted 30 days' time it the Petitioner tenant to vacate the accommodation after recording a finding that it the Petitioner was possessed of sufficient means to shift to another accommodation even if he was required to pay more rent in the said premises ; as also a finding to the effect that the comparative hardship to the landlord by refusing the great of the application would be more than the hardship caused to the tenant by rejecting the application for release. A further finding was recorded that the accommodation was bonfire required by the landlord for bus use Aggrieved by the order the learned Prescribed Authority, contained in annexure -9, the Petitioner filed a rent appeal (No. 91 of 1983) in the court of the learned District Judge, Lucknow invoking the provisions of Section 22 of the Act. The memo of appeal which has been placed on record as annexure -10 to the writ petition day s not disclose, prima facie, any error of jurisdiction, the matter was heard by tie Additional District Judge Lucknow who by his order dated 29th August, 19; 5 dismissed the appeal but was pleased to grant six months time from the date of the order to the Petitioner to vacate the premises in dispute. It is against toke and orders that the Petitioner had preferred the present writ petition before this Court Under Article 226 of the Constitution. The petition was cot admitted btitinitially this Court was pleased to pass an ad -interim order of stay on 30th November, 1985. Thereafter, it seems, the matter was taken up for admission on 4th February. 1985 when this Court directed a spot inspection of the premises by an Advocate Commissioner to ascertain whether a room on the ground floor which had been occupied by one Chandra Singh as a shop, had been since take possession of by the landlord since this was made a matter of serious controversy by the Petitioner. In the meantime the landlord. Parameter Singh, put in appearance and filed a counter affidavit on 9th December, 1985 to which a rejoinder affidavit was filed by the Petitioner on 17th February 1986. Since the time granted by the lower appellate court to vacate the premises was expiring on 28th February. 1986 it was considered desirable in the interest of justice that the matter be finally heard and disposed of at the admission stage. The learned Counsel for the Petitioner. Sri Hider Abbes, and the learned Counsel for the contesting opposite party No. 3, Sri P.K. Hare, agreed that the matter be taken up for hearing on 26th February, 1986 and decided. It is in these circumstances that the matter has come before me for final hearing and I proceeded to hear the detailed arguments of the learned Counsel for the parties hereinabove mentioned on the various aspects involved m the writ petition. As has been stated by me above the judgments of the two courts below have been assailed by Sri Hider Abbes on the ground that the finding recorded by the Prescribed Authority that the tenant was possessed of sufficient means was based on no evidence and that in an case no such pleading was specifically made. The other ground of attack was that since there was no finding regarding comparative need and hardship of the parties the order was vitiated Sri Hider Boas also pointed out that in view of the fact that one room on the ground floor earlier in the occupation of Sri Chandra Singh for commercial purpose had since been acquired by the land load who had taken possession of the said room with the said Sri Chandra Singh made the accommodation at the disposal of the landlord sufficient to meet his needs and as such no further accommodation was required and the release application was misconceived and liable to be thrown out on this ground alone. The learned Counsel has pointed that an offer had been made by the tenant to the landlord that since he had only to living rooms on the ground floor in his occupation and the landlord had already taken possession of one room (room in the possession of Chandra Singh) he was prepared to give one more room in his occupation to the landlord in lieu of a room to be given to him by the landlord on the first floor The learned Counsel also made an offer of exchange of his ground floor accommodation with the first floor accommodation occupied by the landlord. Learned Counsel has also assailed the order of the Additional District Judge passed in appeal on the ground that he has confirmed the findings of the trial court which are itself perverse and based on no evidence without application of mind. The first point urged by the learned Counsel for the Petitioner that the finding recorded by the courts below that the tenant -Petitioner was possessed of sufficient means was based on no evidence and that no pleading to this effect was specifically made is devoid of any force inasmuch as the Prescribed Authority in his order (Annexure -9) has stated that the tenant was possessed of two trucks Nos. UTD 8544 and UPH 4756, one in his name and the other in the name of his son Narendra Singh and that he was doing transportation contract job with M P. Sugar Mills, Mazda, District Fakirabad. The learned Additional District judge at the appellate stage relying on two statements of the Petitioner's counsel that the Petitioner had added, a third truck in his transport fleet confirmed the trial courts finding since the landlord had stated in his affidavit that the income of the Petitioner at the rate of Rs. 200/ - per truck per day would be about Rs. 18 000/ - per month. May be the calculation of income of the Petitioner may not be justified but. at the same time there can be no game -saying the fact that the Petitioner did have a substantial income so as to enable him to land out a suitable alternative accommodation in case an order of abetment was passed against him. This view was taken by this Court in Sandal Das Bank v. Ill Addl. District Judge, Jainabad., 1982 AKC 24 wherein the learned Judge observed that in case the tenant " was in a position to take another house on rent or purchase, then he cannot complain to hardship. In the instant case it has been loud that the Petitioner has a fairly flourishing business of cement, food grains and bandana and has purchased a house in Mohalla Fatehganj in the same city for commercial purposes " relying on a decision of the Hon'ble Supreme Court in Central Tobacco co. v. Chandra Prakash, delivered in i9b9 which has been followed in M H. Began Begum v. Abdul Ahmad Khan (dead by Likes.) Ask, 1979 SC 22 and again in Pharoses Bemidji Desai v. Chanuiakunt N. Pate, (1974)2 SOJ 661. i find that the consideration of the financial status of the Petitioner was a germane to the issue and cannot be termed to be an irrelevant consideration in passing the impugned orders. As indicated hereinabove it is not a case where there was no evidence to warrant finding that the Petitioner was possessed of sufficient means. The Jaw is well settled that finding recorded on the question of comparative hardship of landlord and tenant is a fining of (act and " it is not for the High Court in the exercise to its jurisdiction Under Article 226 of the Constitution to reappraise the evidence and come to its own conclusion which may be different from that reached by the District Judge or the Prescribed Authentic " as held by the Supreme Court of India in Manna Lai v. Prescribed Authority, Auk, 1978 SC 2y. Looking to the evidence and examining it iron this point of view it is abundantly clear that there was a finding regarding comparative need and hardship of parties and there was evidence available on record to warrant such a finding and even though it may be assumed that a different finding could be recorded on this question of tact by another authority but in the instant case I find that there was sufficient evidence to warrant such a finding. Even otherwise concinnity finding of fact recorded by the courts below cannot be subject matter of scrutiny Under Article 226 of the Constitution. It will also be pertinent to point out that as held by the Supreme Court in Began Begum s case (Supra; " It is no doubt true that the tenant will have to be ousted from the house if a decree for eviction is passed, but such an event would happen whenever a decree for eviction is passed and was Tully in contemplation of the legislature when Section 11(1)(h) of the Act was introduced in the Act. This by itself would not be a valid ground for reusing the Plaintiffs a decree for eviction. The supreme Court was further pleased to lay down the lave regarding onus of proof and said that is deciding the extent of hardship in case a decree eviction is parsed or is ret used " it seems to us that m deciding this aspect to the matter earn party ha. to prove us relative advantages or disadvantages and the entire onus cannot be thrown on the Plaintiffs to prove the lesser disadvantages which will be suffered by the Defendants and that they were remediable.
(3.) THE next point urged by the learned Counsel for the Petitioner was that since the landlord had occupied one room on the ground floor which as used for commercial purposes by Chandra Singh, the deceased tenant, tie accommodation was sufficient for him and that it would be a sufficient ground to reject the application for release and no further accommodation was required by him. I do not find any force in this contention. The Delhi High Court bulky Das v. Sure Bhang : AIR 1982 Delhi 117 held that bonfire personal need had to be found by talking into consideration the tact whether the existing accommodation with the landlord was reasonably suitable for determination of which a vital consideration was that the landlord was not expected to sacrifice his own Comoros for sake of a tenant and that he could not be compelled to live and occupy a certain accommodation which the tenant considered was sufficient and suitable for him. In the instant case it has been brought on record that the father of the landlord -Respondent was an old man and that his mother was a patient of angina and high blood pressure coupled with a further equal and important circumstance that the landlord had been recently married and that he required further accommodation. The demand for release of the accommodation in possession of the Petitioner on the ground floor was in the circumstances found to be bonfire by the courts believes and I cannot, in exercise of jurisdiction Under Article 226 of the Constitution, disturb that finding of fact. So far as the accommodation in possession of Chandra Singh is concerned a Commission was issued by this Court and the Advocate Commissioner has submitted a report dated 14th February, 19s6 in which she indicated that she had examined witnesses, received documents from the parties in support of their respective contention and she filed a site plan with the said report being annexure Al and A2 thereto. The Commissioner found the disputed shop, earlier occupied by Chandra Singh, was in possession of the Petitioner. Be it as it may even if the said room (earlier said to be used as a shop by Chandra Singh;, may be assumed to be in possession of the landlord that would in itself not disentitle the landlord from release of the accommodation or lead to an irresistible conclusion that the need for release of the accommodation was not bonfire specially when, as indicated in the site plan, annexure A -l to the Commissioner 's report, it is a room closed from all sides and opening only on the road with no connection whatsoever with the stair case or having the toilet attached to it and as such cannot be said to serve the purpose of the landlord's old father or his ailing mother. I do not find any case for interference on this ground and the contention deserves to be outright rejected. Similar no cognizance can be taken of an offer alleged to have been made by the tenant that since the landlord has already occupied the room earlier in the tenancy of Chandra Singh he was prepared to give one more room to him on the ground floor in lieu of the accommodation occupied by the landlord on the list floor. Besides the fact that the said offer has no legs to stand on it is to be seen further that had the two room accommodation been sufficient the landlord would never have, possibly, applied for release of the ground floor accommodation as an additional accommodation for his personal use.;