Surya Prakash Kesarwani, J. - (1.) Heard Sri Diwakar Rai Sharma, learned Counsel for the defendant-petitioner/tenant and Sri P.K. Jain, learned Senior Advocate assisted by Sri Rishi Chaddha, learned Counsel for the plaintiff-respondent/landlord. This writ petition under Article 226 of the Constitution of India has been filed praying for the following relief: "(i) Issue a writ, order or direction in the nature of CERTIORARI to quash the order dated 30.5.2005 passed by Civil Judge (Junior Division), Atrauli, Aligarh in U.P.U.B. Case No. 1 of 1999, Om Prakash and another v. Hari Shankar, (Annexure No. 13 to the writ petition) and the judgment and order dated 7.11.2017 passed by Upper District Judge, Court No. 2, Aligarh in U.P.U.B. Appeal No. 7 of 2005, Hari Shankar v. Om Prakash deceased and others Annexure No. 20 to the writ petition)." Facts :
(2.) Briefly stated, facts of the present case are that there were three shops owned by the applicant No. 1 Sri Om Prakash in town area Chharra, Pargana Gangiri, Tehsil Atrauli, District Aligarh. He had three sons namely Sri Narendra Kumar Maheshwari, Surendra Kumar Maheshwari and Devendra Kumar Maheshwari. An U.P.U.B. Case No. 1 of 1999 (Om Prakash and Narendra Kumar Maheshwari v. Hari Shankar) was filed by him under section 21 (1) (a) of U.P. Act 13 of 1972 on the ground of bona fide need for starting of business by his grandson Sri Vivek Kumar Maheshwari son of the applicant No. 2. The aforesaid Sri Om Prakash filed two separate cases for eviction of tenants from the remaining two shops. He executed a Will dated 2.8.2000. However, by sale deed dated 25.9.2004, he sold the aforesaid two shops to existing tenants against whom he had filed eviction suits. With respect to the disputed shop, he continued to contest the release application. During pendency of the aforesaid U.P.U.B. Case, the aforesaid original owner and landlord Sri Om Prakash died. He was substituted by his heirs and legal representatives including Sri Vivek Kumar Maheshwari for whose bona fide need the aforesaid Om Prakash and his son Narendra Maheshwari have filed the U.P.U.B. Case No. 1 of 1999. This case was decreed by judgment dated 30.5.2005 passed by the Civil Judge (Junior Division), Atarauli, Aligarh.
(3.) Aggrieved with the aforesaid judgment dated 30.5.2005, the defendant-petitioner/tenant filed a U.P.U.B. Appeal No. 7 of 2005 (Hari Shankar v. Sri Om Prakash and others), which was allowed by the Court of Additional District Judge, Court No. 1, Aligarh by judgment dated 11.4.2008. Aggrieved with this judgment, the aforesaid Vivek Kumar Maheshwari and another, filed Writ-A No. 24994 of 2008 (Vivek Kumar Maheshwari and another v. Hari Shankar), which was allowed by order dated 3.9.2014 and the matter was remanded for decision in the appeal afresh, as under: "Counter affidavit filed is taken on record. Heard Sri P.K. Jain, Senior Advocate assisted by Sri Abu Bakht, Counsel for the petitioners and Sri Preet Pal Singh, Counsel for the respondents. One Om Prakash alongwith his son Narendra Kumar Maheshwari applied for release of the shop in dispute situate at Dando Road, Qasba Chharra, Pargana Gangeeri, Tehsil Atrauli, District Aligarh under section 21 (1) (a) of the U.P. Act No. 13 of 1972 for bona fide need of Vivek Kumar Maheshwari grand-son of Om Prakash and son of Narendra Kumar Maheshwari on the ground that he has completed M.Sc. and is unemployed; he wants to start the business of oil paint and chemical from the shop in dispute and he has no other alternate accommodation available. The release application was allowed by the Prescribed Authority vide judgment and order dated 30.5.2000. The Prescribed Authority held that the release application filed by the above persons is maintainable and the need set up by them is bona fide and comparative hardship is also in their favour. The respondent-tenant preferred appeal. During pendency of appeal Om Prakash died and on the basis of his Will, Vivek Kumar Maheshwari inherited the shop in dispute and, as such, he was also added as a party to the release proceedings. The Appellate Court by the impugned judgment and order dated 11.4.2008 has allowed the appeal and has set aside the order of release passed by the Prescribed Authority. The main ground on which the appeal has been allowed is that on the death of Om Prakash the premises from where he was doing business is available to Vivek Kumar Maheshwari and he can start his business from the said shop. Om Prakash and Narendra Kumar Maheshwari were doing business together. On the death of Om Prakash the said business has been taken over by Narendra Kumar and, as such the shop from which Om Prakash was doing business is not available to Vivek Kumar Maheshwari. Vivek Kumar Maheshwari alone has inherited the shop in dispute on the basis of the Will of late Om Prakash. The other properties of Om Prakash have been inherited by his sons and not Vivek Kumar Maheshwari. In view of the above, Vivek Kumar Maheshwari as the sole and exclusive owner of the shop in dispute is entitle to get it vacated for his own need. Any other accommodation which was available to Om Prakash would not be available to him. All these aspects have not been dealt with by the Appellate Court. The Appellate Court has misconstrued the need of Vivek Kumar Maheshwari. It incorrectly held that the accommodation from which Om Prakash was doing business would be available to him. This is in complete disregard to the fact that it was not inherited by him and at the same time his father Narendra Kumar Maheshwari alone had taken over the business which was being run by his father om Prakash. In view of the aforesaid facts and circumstances, the judgment and order dated 11.4.2008 passed by the Appellate Court is quashed and the matter is remanded to it for decision of the appeal afresh, in accordance with law, as expeditiously as possible, preferably within a period of six months from the date of production of a certified copy of this order.";