- (1.) SUDHIR Narain, J. This writ petition is directed against the order of the Prescribed Authority dated 18. 9. 1985, al lowing the application of the landlord-respondent filed for release of the disputed accommodation under Section 21 (1) (a) of U. P. Urban Buildings (Regulation of Let ting, Rent and Eviction) Act, 1972 (In short 'the Act') and theorder of respondent No. 1, dated 17. 8. 1990, rejecting the application of the petitioner for condonation of delay in filing the appeal and dismissing the appeal against the order of the Prescribed Authority.
(2.) BRIEFLY stated the facts are that respondent No. 3 filed application for release under Section 21 (1) (a) of the Act against Ram Narain Bagley and one Brij Mohan Agarwal. He was a medical prac titioner and his wife Smt. Usha Kumari was also a doctor. She was in medical service of the State from where she resigned and decided to open a Nursing Home. The landlord was living and carrying on his private practice in a rented building in Rani Bazar, Saharanpur, which was not suitable for his residential purpose and private prac tice. The landlady of the said house was also pressing him to vacate that building. He genuinely needed the building in question for establishment of his Nursing Home and his wife and for residence of his family. Dr. Ram Narain Bagley and Brij Mohan Agar wal both filed written statement and they denied the need set up by the applicant. The applicant filed affidavit in support of his version. On 16. 9. 1985 a compromise was filed purported to have been signed by the petitioner and Brij Mohan Agarwal. In that compromise application the need of the ap plicant-landlord was accepted. This com promise was verified by one Shiv Nath Shar-ma, Advocate, representing Dr. Ram Narain Bagley and Brij Mohan Agarwal. The Prescribed Authority passed order on 18. 9. 1985 on merits recording the finding that the need of the applicant-landlord was bona fide and genuine. He required the ac commodation for his clinic and for his wife and his residence. It is alleged that after the said order was passed by the Prescribed Authority Dr. Ram Narain Bagley, the tenant delivered possession of four rooms. The applicant-landlord constructed toilet and bath room and extensively repaired the portion given to him by the tenant and new telephone connection was also taken. After about four years Dr. Ram Narain Bagley filed appeal on 12. 4. 1989 along with an application under Section 5 of the Limitation Act to condone the delay in filing the appeal alleging that he was never served with any summons or notice by the Prescribed Authority. He had no knowledge of the proceedings and never entered into compromise alleged to have been filed on his behalf on 16. 9. 1985. This application was opposed by respondent No. 2. He denied the allegations made by Dr. Ram Narain Bagley. Respondent No. 1 prima facie found that the allegations made by Dr. Ram Narain Bagley were incorrect and rejected the application by the impugned order dated 19. 12. 1989. He filed writ peti tion against the said order before this Court. Dr. Ram Narain Bagley, the sole petitioner died on 14. 3. 1995. An application dated 27. 3. 1995 was filed by one Vikrant Bagley for substitution claiming him self as adopted son of Dr. Ram Narain Bagley. Another application was filed on behalf of Smt. Sushila Kumar claiming sub stitution that she is real sister of the deceased petitioner and was residing at the time of his death and inherited the tenancy rights. As the question of facts were to be investigated the matter was remitted to the Prescribed Authority to record finding as to whether Vikrant Bagley is adopted son of Dr. Ram Narain Bagley and Smt. Sushila Kumar was his real sister and secondly, whether these persons were residing with Dr. Ram Narain Bagley at the time of his death. The Prescribed Authority has recorded finding that Vikrant Bagley is not adopted son of Dr. Ram Narain Bagley. He was also not residing with him. As regards Smt. Sushila Kumar, it was found that she is real sister of the deceased petitioner but she was not residing at the time of his death. She was residing with her husband at 22, Chandra Nagar, Saharanpur.
(3.) SRI S. D. N. Singh, learned Counsel for Smt. Sushila Kumar, has assailed the finding recorded by the Prescribed Authority that the accommodation in ques tion was residential one. It is urged that Dr. Ram Narain Bagley was running the clinic and the accommodation should be deemed for non-residential purpose. The Prescribed Authority has considered in detail the evidence adduced by Smt. Sushila Kumar regarding the nature of the building in ques tion. It was found that Dr. Ram Narain Bagley was residing in the family and in a portion of the building he was carrying on his private practice. There was no evidence that the building was let out to Dr. Ram Narain Bagley only for medical practice. On consideration of evidence it was found that Dr. Ram Narain Bagley was carrying on private practice in the building where he was residing. The building was for residential purpose. It has been held in various decisions that if the building is used for residential purpose and a portion of it is being used for professional purpose by a lawyer or doctor the nature of the building will continue to be that of a residential building vide Dr. Bashir Uddin v. District Judge, Bulandshahr and others, 1978 A. L. R. 24; Makalu (since deceased) by his heirs and representatives v. IVth Additional District Judge, Mirzapur and others, 1992 (2) A. R. C. 317 and M/s. Talwar Motors v. 1st Additional District Judge, Kanpur Nagar and others, 1994 (1) A. R. C. 33. The finding recorded by the Prescribed Authority does not suffer from any manifest error of law. The second submission of learned Counsel for the petitioner is that even if the building is residential building, the heirs of the deceased tenant will inherit the tenancy rights of the deceased. In support of his contention he has placed reliance upon the decision Kr. Jagdish Chandra Sinha and others v. M/s. Eileen K. Patricia D'rozarie, A. I. R. 1995 S. C. 515. This case was based upon the interpretation of Section 2 (h) of the West Bengal Premises Tenancy Act, 1956 (In short Act 1956 ).;