- (1.) S. Rafat Alam, J. The petitioner, tenant of a shop, seeks quashing of the order dated 26th August, 1982 of the Und Addl, District Judge, Etawah, allowing the appeal under Section 22 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, (hereinafter referred to as the Act), of respondent No. 3.
(2.) THE admitted facts in short is that the respondent No. 3 is the owner of the shop situated at Bharthana, Bajaj Road, in the district of Etawah. THE said shop was let out to the petitioner on the basis of tenancy deed dated 1-4-1970 for a period of one year on a monthly rental of Rs. 60. THE respondent No. 3 filed an application on 30-5-1979 under Section 21 (1) (a) of the Act for the release of the shop in question on the ground, inter alia, of personal neces sity. THE case of respondent No. 3 (landlord) was that at the time when the shop in question was let out to the petitioner (tenant), his sons were studying and now Ms two sons, namely, Amul Prabal Singh and Acchhaya Pauraus have finished their studies and the wants to settle them. His further case was that his son Amul Prabal Singh wants to set up a business of clothes and therefore, the shop in question is urgently required to start a cloth shop in the same. His further case was that the tenant has got other shops and property arid he is not doing any business from the shop in question and his brother Subhash Chandra was sitting in the shop in question and carrying on the business of Usha Machines and Fans. THE tenant and his brother Devendra are doing the busi ness of Sarrafa, fire-arm and clothes in other shop located at Bakewar Road, Bharthana. Further, the tenant has a large residential house which is very close to the shop in question, hardly 4-5 shops away from it. In the ground floor of the said house there is a large size room just on the side of the road from where any business can be done easily. It has further been alleged by the landlord in the release ap plication that the tenant has constructed a shop in Bharthana which is still lying vacant since last three years and therefore, he has no need for the shop in question. The tenant contested the aforesaid application for the release of the shop on the ground, inter alia, that the landlord is a big agriculturist and his sons are engaged in agriculture and he has no need of the shop in question. The plea of bona fide need set up by the landlord is false and has only been cooked up to get him evicted from the shop in question. Both the parties filed their evidence on affidavit to establish their case. The Prescribed Authority, (Respon dent No. 2), held that the need of the landlord was not genuine and accordingly dismissed the release application dated 30-5-1979 by his order dated 6-12-1980, a copy of which is Annexure 6 to the present petition.
(3.) AGGRIEVED landlord (respondent No. 3) preferred an appeal before the Ap pellate Authority (respondent No. 1) under Section 22 of the Act. The Appellate Authority having, heard the respective parties and after going through the evidence on record, held that the Prescribed Authority wrongly reached the conclusion that the landlord has no bona fide requirement of the accommodation in dispute. While considering the compara tive hardship, the learned trial Court held that admittedly the tenant has two shops in Bharthana in which he is carrying on busi ness. It has further been held that there is a large size room on the ground floor in the residential house under the occupation of the tenant located in the main market wherefrom he can run his business and therefore, if he is evicted from the shop in question, he will not be thrown on the street, whereas the landlord has no other shop at Bharthana except the present one. It has also been held that the brother of the tenant, Subhash Chandra, who was doing business of Usha Machines and fans from the shop in question, has also now shifted to Bombay and the shop is not in use, and admittedly the tenant is sitting on another shop. After discussing the comparative hardship at length, the Appellate Court held that the hardship to the landlord would be more than the hardship to the tenant and accordingly allowed the appeal by his judgment dated 26-8-1982 (An nexure 14 to the petition), which has been impugned in the present peti tion. I have heard Mr. Ravi Kant, learned Counsel for the tenant and Sri M. M. D. Agarwal, learned Counsel for the landlord and also perused the judg ment/orders passed by both the Courts below. The contention of the learned Counsel for the tenant are two fold: First ly, that the ground of personal need set up by the landlord seeking eviction of the petitioner from the shop in question is not genuine and the same has now vanished, as his son Amul Prabal Singh has been ap pointed as Chaukidar. Secondly, that the Appellate Court ought not to have placed reliance on additional evidence without affording any opportunity to the tenant to rebut the same.;