- (1.) S. U. Khan, J. At the time of hearing no one appeared on behalf of ten ants-respondent Nos. 3 and 4, hence only the arguments of learned Counsel for the petitioner were heard.
(2.) THIS is landlord's writ petition arising out of eviction/release proceed ings initiated by him against respondent Nos. 3 and 4 who are husband and wife on the ground of bona fide need under section 21 of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 in the form P. A. Case No. 3 of 1986. Prescribed Authority, Gorakhpur, through judgment and order dated 17. 4. 1992 rejected the release application. Against the said judgment and order the petitioner landlord filed appeal. Neither in the certified copy nor in typed copy (Annexure-16) of thu. judgment of the Appellate Court, number of the ap peal is mentioned. IVth A. D. J. , Gorakhpur dismissed the appeal through judgment and order dated 19. 4. 1997, hence this writ petition. Property in dispute is first floor psrt of a house containing two rooms and other amenities. Landlord is residing en the ground floor which consists of only one room and two varandas. Accord ng to the allegations made in the re lease application, one room on the second floor was also in possession of the landlord but he was not able to use that as stairs passed through the tenanted portion and tenants raised obstructions i r\ the use of the stairs by the landlord. In the release application it was further alleged that even though husband re spondent No. 3 Jagdish Lal Srivastava, was tenant however as rent under sec tion 30 of the Act had been deposited by wife respondent No. 4 Smt. Nirmala Srivastava, hence she was also being impleaded as opposite party No. 2 in the release application. Respondent No. 4 asserted that she was the tenant. According to the landlord rate of rent was Rs. 125/- per month. However ac cording to the tenant rate of rent was Rs. 95/- per month. In the release application copy of which is Annexure-1 to the writ peti tion it was stated that landlord's family consisted of eight member i. e. , land lord, his wife, five daughters and his grand- mother. It was stated that grand mother of the landlord had recently shifted from Goa to Gorakhpur (where property in dispute is situate) and was residing with the landlord. It was fur ther stated that the landlord was already feeling lot of difficulties in accom modating his big family in one room, however, arrival of his grand-mother had worsened the situation. It was also stated that elder daughter of the land lord who at the time of filing of the release application was aged about 10 years and was studying in Class IV was receiving tuition and there was no space for making seating arrangement for the tutor and the taught.
(3.) UNFORTUNATELY, during pendency of release application landlord's grand-mother died. Both the Courts below rejected the release application on the ground that basically need set up was for the grand- mother who had died. During pendency of proceedings before Courts below the youngest daughter of the landlord who was aged one year at the time of filing of the release appli cation died but soon thereafter a son was also born by the name of Durgeesh. The Appellate Court has observed that at the time of decision of appeal, ages of the living children of the landlord were in between 10 to 19 years. In my opinion both the Courts below committed manifest error of law in holding that the need set up was only for the grand-mother. In fact it had been stated in the release application that the big family of the landlord which was having five children was already finding it extremely difficult to adjust in one room. As observed by the Appellate Court at the time of decision of appeal eldest daughter of the landlord was aged 19 years and youngest son was aged 10 years. Absolutely no argument or evidence is required to prove that a family of husband, wife and five children aged in between 10 to 19 years cannot squeeze itself in one room. The need for additional accommodation for such a big family is self evident.;