- (1.) HEARD learned Counsels for the parties.
(2.) THE proceeding in the writ petition arise out of a release application instituted by the petitioner-landlord under section 21 (1) (a) of the U. P. Act No. 13 of 1972 (hereinafter referred as the Act) on 13. 7. 1982 against the contesting respondent No. 2 in respect of a shop which is in occupation of opposite party No. 2 Sri Gandhi Ashram. On the release application filed by the petitioner, the prescribed authority granted relief of eviction vide judgment and order dated 29. 3. 1988. The tenant-respondent preferred an appeal under section 22 of the Act, which was dismissed by 3rd Additional District Judge, Barabanki vide judgment dated 30. 5. 1989. Both the orders were challenged in Writ Petition No. 5795 of 1989. The writ petition was allowed on 22. 2. 1990 and the case was remanded. The writ petition was allowed on specific assertion made by the tenant that the landlord has constructed 5 new shops in Mohalla Rasoolpur, two of which were already completed and three were under construction. It was submitted by the tenant that one shop was let out to one Ramesh in which he runs his business in the name and style of Kamal Memorial Battery Service, Barabanki. While remanding the matter, this Court made an observation, that in the event the assertion by the tenant is found correct then findings recorded by the two Courts below on the question of bonafide need and comparative hardship was liable to be set aside. The stand of the applicant (landlord) was that he was evicted from the tenanted shop, which was the only source of his livelihood, in a different proceeding. The Courts below had taken into consideration, all these aspects while comparing hardship. The order of remand dated 22. 2. 1990 is annexed as Annexure-8 to the writ petition. The Appellate Court allowed the appeal vide order dated 25. 9. 1991 on a conclusion that the landlord has constructed two shops by putting shutter and one Ramesh is in occupation of the shop on a rent of Rs. 25/- per month and he is running his business of Kamal Memorial Battery Service, Barabanki.
(3.) LEARNED Counsel for the petitioner has specifically argued that the findings of the Lower Appellate Court is without any evidence only because certain observations were made in the remand order passed in the first writ petition filed at the instance of the tenant-respondent No. 2. The submission on behalf of the petitioner is that he used to run a readymade garment business from a rented accommodation owned by one Lalta Prasad and the petitioner was evicted by the landlord in a different proceeding, since then he has no other alternative accommodation to run his business. Besides, the need is genuine and bonafide. The balance of hardship is also in favour of the landlord petitioner. Learned Counsel has drawn my attention to the amended paragraph 6-A of the release application wherein it is mentioned that the opposite party No. 2 Gandhi Ashram has taken four shops on a monthly rent of Rs. 240/- per month from Nagar Palika, Nawabganj, Barabanki. The respondent No. 2 has paid premium of 44,000/- and since Gandhi Ashram is a registered body under the Societies Registration Act, it has no dearth of finance and has a flourishing business whereas the landlord is not being permitted to utilize his own shop, which is occupied by the respondent. Learned Counsel for the petitioner has submitted that the findings that two shops have been constructed by putting shutter is absolutely wrong. In fact the petitioner had constructed two rooms in his residential premises in a narrow lane and has put shutter in the drawing room since the marriage of his daughter was to take place on 16. 11. 1984. Several affidavits were brought on record to establish the fact that the room with shutters was used for Baithaka as there was no other room in the house which could be used for the said purpose. Subsequently, Ramesh mentioned aforesaid was given one room for residential purpose and it is absolutely wrong to say that he is running business form the said accommodation. Assuming he undertakes some repairing work in the said room, it can not be said that it will suffice the need of the petitioner to run his hosiery business. The room let out to Ramesh is in the residential premises and not at all proper for conducting hosiery business whereas the disputed shop is situated in a commercial locality which is appropriate for his business. Photographs were also produced before the Court below but the impugned judgment was given on a presumption and an assumption that the room in question is in fact a shop.;