Prakash Krishna - (1.) -This writ petition is directed against the judgment and order dated 22nd of December, 1995, passed by the IXth Additional District Judge, Kanpur Nagar in Rent Appeal No. 239 of 1991, whereby it has allowed the appeal filed by the landlord under Section 22 of the U. P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 and allowed the release application filed under Section 21 (1) (a) thereof in respect of a one room accommodation and a Chabutara on ground floor of property No. F-36, Shanti Nagar, P. S. Rail Bazar Chhaoni, Kanpur.
(2.) THE landlady, respondent No. 2, herein filed a release application numbered as Case No. 43 of 1994, against her tenant petitioner herein on the allegations that she has purchased the disputed property by means of a registered sale deed dated 5th of February, 1981 for her own residence and the residence of her family members. THE tenant is utilizing the disputed accommodation for the purposes of parking his cycle as he is residing alongwith his family members in the adjoining accommodation being Municipal No. F-37, Shanti Nagar on the first floor alongwith his son and daughter. THE husband of landlady is an M.B.B.S. doctor whose clinic is situate at Moti Mohal about a half kilometre away from the property in question. He has earned a good reputation as a doctor. Her father-in-law namely Shri Rameshwar Prasad is aged about 60 years and mother-in-law is aged about 57 years have difficulties in climbing the stairs because of their old age and ailments with which they are suffering. THE father-in-law is already a heart patient and the mother-in-law is suffering with diabetes. THE room in question which is situate on the ground floor is bona fidely needed for their residence as the landlady is presently residing alongwith her family members on the first floor thereof. It was registered as Rent Case No. 43 of 1994 and was filed on 26th of March, 1984. The said release application was contested on the pleas inter alia that the parents in law of the landlady are residing at their ancestral house and they are not members of her family as per definition given in U. P. Act No. 13 of 1972. Consequently, their need cannot be considered as need of the landlady under Section 21 of the Act. The landlady has sufficient accommodation in her occupation in the premises No. F-36 Shanti Nagar and she does not require additional accommodation. However, the tenant petitioner expressed his readiness to exchange with one room on the first floor vide Para 20 of the written statement. During the pendency of the release application, an application was filed by the landlady vide Annexure-5 to the writ petition wherein it was stated by her that her husband has purchased a new Maruti Van for use of the members of family bearing Registration No. U. P. 7/3413 and there is no garage for the said newly purchased car and it is being parked in open area in front of the house. It is causing damage to the car and the car is also unsafe. It was further stated in the said application that the ceiling of the disputed room in possession of the petitioner tenant is about 15' in height and the floor is also 1/2' above the ground level. She will make necessary alteration in the said room by lowering down the floor and constructing Duchhatti so that Duchhatti may be used for the need already set up and there will also be provision for garage. The said application is dated 2nd of April, 1990. It was supported by an affidavit. In response thereof the petitioner filed his affidavit stating that residents of locality are parking their cars in front of their houses and the such parking in open is not unsafe nor it has caused any damage to any car. There is a guard who looks after all the cars and other vehicles of the locality. The height of the room in question according to the petitioner is only 14' and no such alteration as proposed by the landlady can take place unless a map is got sanctioned and prayed that the said application dated 2nd of April, 1990 be rejected vide Annexure-8 to the writ petition.
(3.) THE parties led evidence in support of their respective cases by filing affidavits and documents in support thereof. THE prescribed authority rejected the release application on the ground that alleged illness of in-laws of the landlady is not established by filing relevant documentary evidence and that she has already got 8 rooms in a vacant state and has built five rooms at Gandhinagar on the ground floor where she can park her car. THE said order has been set aside in Rent Appeal No. 239 of 1991 by the IXth Additional District Judge, Kanpur, on 2nd of December, 1995, after reversing the findings recorded by the prescribed authority. Challenging the legality and validity of the appellate judgment the present writ petition is at the instance of the tenant. Heard Shri Some Narain Mishra, the learned counsel for the petitioner and Shri Atul Dayal, learned counsel for the contesting respondent No. 2. The main thrust of the argument of the learned counsel for the petitioner is that the appellate court has committed illegality in holding that the need of the respondent landlady is bona fide and genuine and that she will suffer greater hardship in case the release application is not allowed. It was argued that the landlady is owning number of properties detailed in Para 34 of the writ petition. The appellate court has also failed to consider the offer made by the petitioner tenant that he is prepared to vacate the disputed accommodation provided an alternative accommodation on the first floor of the disputed building is given to him in its exchange. The need for garage could not have been considered as the release application was not got amended. In response the learned counsel for the respondent landlady has supported the impugned order.;