- (1.) S. R. Singh, J. Dinesh Kumar ar rayed as a party-respondent No. 3 in the instant petition, applied for release of the premises in question under Section 21 (1) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Evic tion) Act, 1972 (In short the 'act' ). His case as set out in the application for release was that after graduation in science, he spent years in job-hunting and had reached the age of 31 years without any success and w tien his frantic efforts to secure a job did not pay off, he decided to settle and estab lish himself in Sarafa business in the shop in question independent of his brother and other family members and to reinforce his preference for Sarafa business, he had ob tained a training certificate in relation to the said business. The shop in question, according to the landlord, was situate at a place which is most ideal for sarafa ven ture. It was alleged that the petitioner herein arrayed as opposite party in the release application had a small utensil business in the shop in question which he could shift to another place and in fact initially, he had assured to vacate the shop but subsequently, avarice winged his urge to wangle pagree money (Premium) and accordingly he resold and is still occupying the shop. The application for release was resisted by the petitioner inter alia on the grounds that the alleged need of the landlord was far-fetched and could not be characterised as bonaflde and genuine one and that in the event of the release applica tion being allowed, the (tenant) would be exposed to the perils of greater hardship vis-a-vis the landlord.
(2.) THE Prescribed Authority by its judgment and order dated 16-9-1988, rejected the application on the finding that the need of the respondent-landlord was far from bonaflde and genuine and that the tenant would suffer greater hardship in the event of release application being allowed. It was held by the Prescribed Authority that the Landlord's brothers were settled in their respective business and he too could float his business in his (sic) No. 53 situate at Chhota Bazar Dibai, which was being used by his mother for storing Keregas Chulhas. Aggrieved, the respon dent landlord went up in appeal which culminated in being allowed vide judg ment and order dated 7th Nov. 1989, passed by IXth Addl. District Judge, Bulandshahar who held that the need of the respondent-landlord was bonafide, ur gent and real and that the balance of com parative hardship also learned in favour of the landlord. THE appellate authority recorded a categorical finding that the shop No. 53 situate at Chhota Bazar Dibai which was actually offered by the landlord's mother to the petitioner tenant, was not the ideal one for Sarafa business. As regards shop No. 120 situate at Mohalla Bazar Kalan, the appellate Court held that it was the property of Landlord's brother Suresh Kumar wherein a business in the name and style of Firm Madan Lai Dinesh Kumar, was being run in which Suresh Kumar and his mother Smt. Narayani Devi had half share each. THE tenant's plea that the shop belonged to Dinesh Kumar, did not commend itself for acceptance by the appellate authority. Similarly, shop No. 118 situate at Bazar Kalan was held to be owned by Rajesh Kumar which was released in favour of Rajesh Kumar pur suant to the judgment and order dated 3-4-1988. In the like manner, godown Nos. 455,565 and 458 were found not befitting the schehie of Sarafa business, being lo cated at the out-skirts of the City and also by reason of the same being godown. Similarly, in respect of shop No. Ill also, the appellate Court found that it was in the name of Landlord's father Ram Swarup who had since sold it away. At the same time, the appellate Court also held that since the Prescribed Authority rejected the Landlord's release application on the Solitary ground that he could set up his business in shop No. 53 at Chhota Bazar Dibai and since the tenant did not file any cross-objection as against the adverse finding recorded by the Prescribed Authority regarding shops, it was not open for him to agitate any plea based on shops other than shop No. 53, situate at Chhota Bazar Dibai. Sri K. M. Daya, appearing for the petitioner emphatically urged that the appellate authority was not justified in repelling the petitioner's contention based on shops other than the shop No. 53 merely because no cross-objection was filed by the petitioner. The learned Counsel urged that the petitioner could support the order passed by the Prescribed Authority by challenging the adverse findings recorded by the Prescribed Authority even without filing cross-objection. The provisions of Order XLI, Rule 22, CPC are not intended for application to appeals preferred under Section 22 of the Act as held in Kunwar Krishna and Ors. v. Prescribedauthority, Oral, 1980 UP Rent Control Cases 379, reliance on which was placed by the learned Coun sel appearing for the petitioner, but in the said situation, it has also been held therein that the appellate Authority could reverse or rescind and order only in so far as it may be necessary for giving relief to the appel lant. So far as the question whether a respondent to an appeal under Section 22 of the Act can support the order under appeal by challenging the adverse findings recorded by Prescribed Authority without filing a cross-objection is concerned, I am of the view that the appellate authority has the power under Section 10 (2) of the Act to confirm, vary or rescind the order under appeal or remand the case to the Prescribed Authority for rehearing and by virtue of the said provision, the appellate authority could have gone so far as to reverse any adverse finding recorded against the petitioner who had won the case at the level of the Prescribed Authority and thereby, maintained the. final order passed in his favour for such a power has to be read in Section 10 (2) to effectuate the express power to 'confirm' the order under appeal as conferred there under, but in the instant case, as noticed above, the appellate authority has in fact, reckoned with petitioner's argument regardingvarious alternative accommoda tions which, according to him, were avail able for the landlord and has virtually af firm the findings recorded by the Prescribed Authority in respect of the shops other than shop No. 53 situate at Chhota Bazar Dibai. Accordingly, the ob servations made by the appellate authority in paragraph 7 of the judgment that since the petitioner had not filed cross-objec tion, he would not be permitted to make good by assailing the adverse finding recorded against him, would be of no con sequence to the petitioner.
(3.) THAT part, as urged by Sri M. K. Gupta, and held by the Supreme Court in Mrs. Meenal Kek Nath Ksnirsagar v. Mis. Trader and Agencies, JT1996 (6) SC 468, "if the landlord desires to beneficially enjoy his own property when the other property occupied by him as a tenant or on any other basis is either insecure or inconvenient, if is not for the Courts to dictate him to continue to occupy such premises. " The observations aforesaid though made in the context of residential accom modation, may usefully be quoted in con nection with the Landlord's business re quirements as well. In Dr. Saroj Kumar Das \. Arjunprasadjogni, 1987 Supreme Court and Full Bench Rent Cases 432, it was taken by the Supreme Court as a settled principle of law that the alternative ac commodation must be reasonably suitable and if it is not so then mere availability of alternative accommodation will not be a ground to refuse a decree for eviction if otherwise, the Courts are satisfied about the genuine requirements of the landlord. The principle laid down by the Supreme Court in the above noted decision is ap plicable to the facts of the present case on all course inasmuch as the finding recorded by the appellate Court is that the need of the respondent landlord was bona fide, genuine and urgent.;