Vivek Kumar Birla, J. - (1.) Heard learned counsel for the petitioner and Sri Arvind Srivastava, learned counsel appearing for the respondents.
(2.) Present petition has been filed setting aside the order dated 13.7.2018 passed in Execution Case No. 1 of 2016 (Shashi Kumar Dubey v. Atikur Rahman).
(3.) It is not in dispute that the release application filed by the plaintiff-respondent no. 1 was dismissed by the trial court. The appeal filed by the plaintiff-respondent was allowed by the lower appellate court and the petition filed against the same was dismissed by this Court vide order dated 26.10.2016 passed in Matters Under Article 227 No. 8713 of 2016 (Atiqurrahman v. Shri Shashi Kumar Dubey). The aforesaid order is quoted as under:- "Heard Shri R.P. Tiwari, counsel for the petitioner and Shri Amit Saxena and Dilip Goswami, for the respondent. The writ petition arises out of a release application filed under Section 21 (1) (a) and 21 (1) (b) of the Act No. 13 of 1972 by the respondent. The need set up by the landlord was that his son aged about 30 years was in private employment on meagre wages and he wanted to settle his son in confectionery business after reconstruction of the shop in question. It was also alleged that the shop in question was extremely old and in dilapidated condition. The release application was dismissed vide order dated 23.04.2016. This order has been reversed by the appellate court which has allowed the appeal as also the release application. The submission of the learned counsel for the petitioner is that he had earlier filed a suit for injunction as the landlord was forcibly trying to evict him from the shop in question. In this suit the landlord had deposed that he wanted to enhance the rent of the shop in question from Rs. 250/- to Rs. 2000/-. It has been submitted that this statement was filed in the proceedings before the Prescribed Authority. This admission which shows the actual intention of the landlord has not been taken into consideration while passing the impugned appellate order. The second submission made is that the tenant had been running his business from the shop in question for a long time and had earned considerable good will. This aspect has not been considered by the appellate court while allowing the appeal. Learned counsel for the respondent has supported the impugned order. I have considered the submissions made by learned counsel for the parties and have perused the record. The appellate court has, upon consideration of the evidence on record, recorded a finding that the need set up by the landlord, was genuine and bona-fide. The submission of learned counsel for the petitioner that the admission of the landlord that he wanted to enhance the rent of the shop in question is, in my considered opinion, not relevant. The release application is to be filed setting up a need and the person seeking release has to establish that the need set up by him, is genuine and bona-fide. A statement made by the landlord is some other proceedings that he wanted enhancement of the rent, cannot, in any manner, detract from the finding recorded by the courts that the landlords need was genuine and bona-fide. On the question of comparative hardship the appellate court has decided against the petitioner on the finding that no effort was made by him to search for alternative accommodation such an effort was neither pleaded nor proved. Even before this Court it has neither been averred nor argued that the tenant had made any attempt to search for alternative accommodation. Therefore, the finding returned on the question of comparative hardship cannot said to be either perverse or illegal. In view of the above discussion, the writ petition fails and is dismissed." ;