- (1.) J. C. Gupta, J. This writ petition which is listed for admission is finally disposed of at the admission stage as affidavits/counter-affidavits has been exchanged and the parties Counsel have been heard at length.
(2.) THIS writ petition is directed against the judgment and order dated 25-10-96 passed by VIth Additional District Judge, Muzaffar Nagar (Anneure-14) dismissing the petitioner's appeal filed aginst the judgment and order dated 8-11-89 passed by Prescibed authority, Kairana, district Muzaffar Nagar (Annexure-11) whereby the application for release moved by the landlord/respondent No. 3 was allowed. The dispute relates to a shop situated in Mohalla Hanuman Road, Shamli whose boundaries were given at the foot of the application moved under Section 21 (1) (a) of U. P Act No. 13 of 1972. The petitioner is admittedly a tenant in the said shop @ 55/-per month. The said property is said to have been purchased by the landlord in the year 1968. Landlord applied for the release of the said shop for his personal need for setting up his own business of cloths alleging that he was doing sari businesses under the name and style of Tayal Sari Shamli. With the dissolution of this partnership firm w. e. f 31-3- 81, he is unemployed. He has a big family to support. He has no other vacant shop where he could start the said business for which he has sufficient experience. On the other hand the tenant is not using the shop for any effective business and he has installed a fodder cutting machine in the said shop which he can shift to any other premises. He has got extensive property in his village and is doing agriculture there. In short, the case of the applicant was that the shop in question is bonafide required by the landlord and the tenant would suffer no hardship if the application is allowed. The application was contested by the tenant/petitioner inter alia on the ground that after his retirement in the year 1959 he took this shop on rent and since then he is carrying on his business as usual. According to him the shop is not required by the landlord as he is still engaged in saree Business in the name of Tayal Sari Emporium and in addition to that he has got agricultural land and houses in his native village Adampur. In anther shop, he and his brother Ashok Kumar are also engaged in a joint family business in the name of Pradeep Medical Store. The landlord is not unemployed and the allegation that the disputed shop is required for Sari Business is incorrect. On the other hand he has sufficient income to cater the need of the members of his family. It was also alleged that landlord was previously an Engineer and the has set up a factory in the Industrial area Shamli in a 4000 yards plot and from that factory also he has got sufficient income and the application for release has been moved with oblique motive to get the same vacated by the tenant/petitioner though the same is not required by the landlord for his own use.
(3.) PARTIES led evidence on affidavits and also filed some documents. On a consideration thereof the trial court allowed the application after recording a finding that the landlord respondent No. 3 has no of the source of income; that he was previously doing Sari business in the firm Tayal Sari Emporium but the sad firm has been dissolved on 31-3-81 and since thereafter he has been left with no interest in the said business. It has also been found as a fact by the trial Court that the landlord has never been partner in the firm which runs business under the name of 'pradeep medical Store'. The prescribed Authority also found that the allegation of the tenant that the landlord has earnings from money lending business was also not proved. It has also been found that merely because the landlord has some agricultural land in his village that would not disentitle him to do business in the town and on that ground alone his need cannot be said to be malafide. The trial Court also disbelieved the tenant's allegation that the landlord has propriety interest in the factory and it was found that it is not proved that the landlord has any interest in the said factory or that he has any earning there from. On the basis of these findings the trail Court concluded that the need of the landlord/respondent No. 3 is bonafide and genuine. The trial Court also proceeded to examine the question of comparative hardship and a finding on this question has also been recorded in favour of the landlord. Against the order of the Prescribed Authority, the tenant/petitioner filed appeal which has also been dismissed. The lower appellate Court affirmed the findings of the court below, and has come to the conclusion that the need of the landlord/respondent is bonafide as he is unemployed and has no other source of income which may be sufficient to fulfill the basic needs of his family members, who are dependent upon him. The finding on the question of comparative hardship has also been affirmed by the lower court.;