- (1.) RAKESH Tiwari, J. Heard Counsel for the parties and perused the record.
(2.) THE matrix of the case is that respondent-landlord filed release application registered as P. A. Case No. 6 of 1999 under Section 21 (1) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'u. P. Act No. XIII of 1972') before the Prescribed Authority, Najababad on the ground of need for himself. The release application was contested by the petitioner-tenant denying the plaint allegation. The Prescribed Authority after hearing the Counsels for the parties and on appreciation of evidence, allowed the release application vide decree dated 24-9-2000. The order was challenged by the petitioner in Rent Control Appeal No. 6 of 2003 before the District Judge, Bijnor and transferred to the Court of Additional District Judge, Court No. 6, Bijnor. The appeal too was dismissed vide judgment dated 6-9-2006. Aggrieved the petitioners have challenged the orders of Prescribed Authority and Appellate Court in the instant writ petition.
(3.) CONTENTION of Counsel for the petitioner is that the appellate Court has dismissed the appeal without following the procedure laid down in Section 22 read with Section 34 of U. P. Act No. XIII of 1972. In support of his contention, he placed reliance on the decisions in Smt. Balqis Jehan Begum v. Mohd. Khalil Khan & Ors. , 1987 (1) ARC 59; Surendra Kumar Sharma v. XIIIth Additional District Judge, Kanpur & Ors. , 1986 (1) ARC 204 and Hori Lal v. XIth Additional District Judge, Lucknow & Anr. , 1995 (1) ARC 483, wherein it has been held that judgment of appellate Court should be based on reasons and discussions on question of dispute. He submits that in the instant case, neither the appellate Court has recorded an finding on bona fide need nor considered the arguments raised by the petitioner as is apparent from paragraph 8 of the judgment of the appellate Court. He also submits that the landlord is required to prove his bona fide need even if alternate accommodation is available to the tenant as explanation (i) to Section 21 (1) (a) of U. P. Act No. XIII of 1972 does not raise any presumption with regard to bona fide need, which is in regard to the residential accommodation. In the present case, dispute is with regard to the shop, as such, landlord is required to prove his bona fide need but he failed to prove so as he is already engaged in the business of sale of 'ghee'. In support of his contention, he placed reliance upon the decisions in Sudha Agrawal v. Xth Additional District Judge, Varanasi & Ors. , 1999 (2) JCLR 641 (SC) : 1999 (2) ARC 440; Nathu Ram v. Special Judge (D. A. A.) Jhansi & Ors. , 1993 (1) ARC 171 and Yogendra Nath Agarwal v. District Judge, Moradabad & Ors. , 1993 (1) ARC 553, wherein it has been held that requirement of landlord has to be proved as bona fide even if case falls under Explanation (1) to proviso (i ). Landlord is not exempted from proving his bona fide need. There is no presumption in his favour that when case falled under Explanation (i) to proviso fourth of Section 21 (1 ). In the present case, the averment of the petitioner in the rejoinder affidavit was that the respondent had carried on the business of sale of 'ghee' till 1998 and since the said shop of 'ghee' came to the share of his brother, without disclosing the details of partition, the release application was filed. He vehemently urged that the alleged theory of partition is not proved by any cogent evidence. In support of his contention, he relied upon the decisions in Raj Pal (since dead) v. Special Judge (E. C. Act) Etah & Anr. , 1999 (2) ARC 640; Mrs. H. William (since deceased) through Legal Representatives v. 1st Additional District Judge, Jhansi & Anr. , 1999 (2) ARC 620; Vinod Kumar Arora v. Smt. Surjit Kaur, AIR 1987 SC 2179 and Sobaran Singh & Anr. v. Shyam Singh, 2004 (1) JCLR 613 (SC) : 2004 (2) AWC 1994, wherein it has been held that parties cannot be permitted to travel beyond their pleading. No evidence can be looked into with regard to which there is no pleading.;