- (1.) SHASHI Kant Gupta, J. Smt. Kusum Rani Rastogi has approached this Court questioning the validity of the judgment and order dated 29. 5. 1998 passed by 10th Addl. District Judge, Lucknow in Appeal No. 29 of 1994 setting aside the judgment and order dated 17. 2. 1994 passed by the 4th Additional Civil Judge (Senior Division) in P. A. Case No. 38 of 1987.
(2.) THE background facts in a nutshell essentially are as follows: The petitioner-landlord filed an application under Section 21 of U. P. Act 13 of 1972 (in short "act") for release of the disputed residential accommodation (in short "disputed accommodation") on the ground of genuine and bona fide need of herself and her family members inter alia, on the following allegations: (i) The family of the petitioner consists of self, Sri Om Prakash Rastogi (husband), Laxman Das Rastogi (father of the husband of the petitioner), Ram Pyari Rastogi (mother of the petitioner who is dependant upon her) Suheel Kumar Rastogi aged about 28 years (son of the petitioner), Sunil Kumar Rastogi aged about 26 years (son of the petitioner), Smt. Meenu Rastogi (daughter of the petitioner married on 22. 3. 1986 ). (ii) The accommodation in possession of the petitioner comprises of two rooms and a bath room on the ground floor and two rooms, a store and a small kitchen on the first floor. (iii) The respondent No. 3 is a tenant of the petitioner on a monthly rent of Rs. 10 per month and the accommodation in possession of the tenant comprises of two rooms, one kothari on the ground floor; one room, a small kothari and a kitchen on the first floor. The family of the respondent No. 3-tenant consists of self, wife, two minor sons and one daughter. (iv) The petitioner is engaged in business and the sons are major and are employed and are of marriageable age. The ground floor of the present accommodation of the petitioner has no living space as the outer room is used as a drawing room (11. 10 ft x 6. 3 ft) and the inner room (10. 00 ft x 8. 6 ft) with no ventilation and the same is being used as a store room. The two rooms on the first floor are insufficient to cater the needs of the large family of the petitioner. (v) The opposite party-tenant is a resourceful person having a high financial status and has an alternative accommodation situated; Yahiganj Tagpatti, Lucknow which is kept locked by him to harass the petitioner. The need of the petitioner is bona fide and comparative hardship also leans in his favour. The respondent No. 3 contested the release application and filed his written statement and inter alia, alleged that neither the need of the petitioner is bona fide nor genuine and the comparative hardship also leans in favour of the tenant. It is further alleged that in the family partition he had relinquished his claim on the ancestral house and got the jewellery and cash in lieu thereof and the said house is in the possession of his brother and father. It is further alleged that Smt. Rampyari mother of the landlord- applicant is residing in her own house in Farukhabad and she occasionally comes to Kanpur and does not stay with the landlord. The younger son Sri Sunil Kumar is employed in Sultanpur and is permanently residing there, daughter of the landlord-applicant got married in 1987 and staying with her husband. It is further alleged that since the respondent No. 3 was not having any source of income, therefore, his wife installed sewing machines on the ground floor rooms for commercial purpose from which she is earning Rs. 300/- per month.
(3.) THE petitioner filed his replication in reply to the written statement and rebutted the allegations of the tenant. The Commissioner's report which also is on the record, provides as follows: Petitioner's accommodation Ground floor.- one room measuring 11. 10 ft. X6. 3 ft. , another room measuring 10 ft. x 8. 6 ft. which is being used as store room, one verandah 12. 4 ft. x 7. 6 ft. another verandah 3. 1 ft. x 7. 5 ft. , one courtyard 10 ft. x 11 ft. , one gallery 8. 1 ft. x 3. 5 ft, one bath room 4. 1 ft. x 4. 5 ft. First floor.- one room measuring 11. 10ft. x6. 3ft. , anotherroom8. 8ft. x 10 ft. , one store room 4. 7 ft. X4. 9 ft. , one Court yard and small kothari. Tenant's accommodation Ground floor.- One room 14 ft. x 8 ft. wherein four sowings machine are kept. One kothari adjoining to the said room, another room measuring 17. 11 ft. x 7. 5 ft. , wherein six sewing machines are kept and all the said ten machines are run by power. One courtyard 11. 11 ft. x 14. 6 ft. First floor.- One room 14. 2 ft. x 7. 10 ft. , one adjoining small kothari, one kitchen in the corner covered by asbestos sheet.;