I.M.QUDDUSI,J. - (1.) BY means of the present writ petition, the petitioner has prayed for quashing of the judgment and order dated 18.10.1995 passed by IVth Addl. District Judge, Bijnor in Rent Control Appeal No. 23 of 1983, Deveshwar Sharma v. Virendra Kumar Gupta and others.
(2.) HEARD the learned Counsel for the petitioner Sri P.K. Jain and Sr. Deoraj Singh, learned Counsel for the respondents. Sri Dev Raj Singh did not intend to file counter-affidavit and as such the hearing proceeded at the stage of admission. The brief facts of the case are that Virednra Kumar Gupta (since deceased) filed an application before the Prescribed Authority, Bijnor on the ground of personal need under Section 21(1)(a) of U.P. Act No 13 of 1972 against the present petitioner, who is a tenant in the house which is numbered as B-14 situate in Mohalla Nai Basti, Bijnor. The application was registered as Application No. 13 of 1986. The release application was allowed vide Judgment and order dated 14th January, 1988 by the Prescribed Authority and the present petitioner was directed to vacate the premises in question within one month failing which the premises would be got vacated through the Court at the expenses of the present petitioner. Against the said judgment the petitioner preferred an appeal before the District Judge, Bijnor. In the meantime Virendra Kumar died on 27.10.1988. However, the appeal was dismissed by the Additional District Judge, Bijnor against which a writ petition was filed by the petitioner which was registered as writ petition No. 11501 of 1991, which was allowed vide judgment and order dated 7.12.1994, and the order dated 21.3.1991 passed by the learned Additional District Judge was quashed and the appeal was remanded to him to hear and dispose of the same afresh. It is necessary to peruse the relevant portion of the judgment at this stage which is quoted below :- "The writ petition is accordingly allowed. The impugned order dated 21.3.1991 of the learned Additional District Judge is quashed and the appeal is remanded to him to hear and dispose of the same afresh in accordance with law, keeping in mind the principles underlying the Sections 21(1)(a), 21(7) of the Act and addressing himself to the need of the legal representative; keeping in mind the rival contentions of the parties, and the evidence led with regard to the same by them. The appeal being an old one shall be disposed of within a period of three months. No order is made as to costs." Thereafter the learned IVth Additional District Judge, Bijnor heard and decided the appeal of the petitioner vide his judgment and order dated 18th October, 1995 against which the present writ petition has been filed.
(3.) AFTER the death of Virendra Kumar, it has been pleaded in the pleadings by way of amendment that Virendra Kumar left behind a widow, namely Shrimati Shakuntala, four sons and three daughters. One of the daughters, namely Indu Gupta is a widow and the other two daughters, namely, Chitra Gupta and Uma Rastogi are married daughters. The contention of the learned Counsel for the petitioner is that in Section 3(g) of U.P. Act No. 13 of 1972, the definition of the 'family' in relation to a landlord and tenant of a building has been given according to which married daughters do not come within the definition of the family. His further contention is that this Court in its judgment dated 7.12.1994 had observed that the specific pleading by way of amendment in the written statement was taken to the effect that the widow and sons of Virendra Kumar are settled and residing in their own house in Dehradun and the daughters are living at the places of their husbands. The learned IVth Additional District Judge did not investigate into said facts nor addressed himself to the same. The need of a landlord of release by ousting a tenant should not be based on mere presumptions. It has to be real pressing and bona fide. It was, therefore, directed by the High Court to the learned lower appellate Court that the parties may be called upon to specifically lead evidence touching these questions and then to decide whether or not legal representatives of late Virendra Kumar have bona fide requirement of the premises in question and after so doing he was required to address himself to the question of comparative hardship keeping in mind also the provisions of Rule 16(1) of the Rules framed under the Act, but the learned lower appellate the Court did not follow the directions of this Court and did not observe the facts and circumstances addressing himself regarding the bona fide requirement of legal repesentatives of late Virendra Kumar. He has submitted that one of the sons of late Virendra Kumar is Branch Manager in Punjab National Bank and an affidavit to this effect was filed by the petitioner and even his telephone number was mentioned in the affidavit and the said facts were not denied by any of the brothers by filing affidavit. In spite of that the same was not considered and the burden was wrongly shifted upon the petitioners by the learned counsel below.;