Jagdish Chandra Gupta, J. - (1.) SINCE caveat had been filed on behalf of the landlord -respondent, and when this writ petition came up for hearing, the counsel for the caveator was allowed time to file a short counter -affidavit which he has filed. Rejoinder -affidavit has also been filed so also supplementary -affidavit. Learned counsel for the caveator stated that instead of giving him time for filing counter -affidavit this writ petition may be disposed of finally. In the circumstances and with the consent of parties' counsel, this writ petition is disposed of finally.
(2.) THE dispute relates to a portion of house No. 12/424, Gwal Toli, Kanpur Nagar, which is being used for residential purpose by the tenant -petitioner. The house in question was purchased by the landlord respondent No. 3 in the year 1990 and after serving the requisite notice under first proviso to Section 21(1)(a) of the Act, an application for release was filed by the landlord before respondent No. 2, the Prescribed Authority, alleging therein that the accommodation already in occupation of the landlord in the same house was inadequate and insufficient for meeting out the needs of his family members. According to the landlord, he is in occupation of only one room of 16' x 7' in the first floor and one room in the ground floor plus Verandah etc. The landlord alleged that having regard to the number of his family members only two living room were not sufficient for them. It was further alleged that the tenant is in no need of the disputed portion as he has been sub -letting the same. The application was contested by the petitioner -tenant on a number of grounds. The main ground being that the landlord has with him additional accommodation in the house in question as well as he is also residing in house No. 12/424, Gwal Toli, Kanpur, and he has with him sufficient accommodation and his need for additional accommodation was not bona fide the Prescribed Authority by the order dated 7 -1 -1995 allowed the landlord's application and appeal filed by the tenant -petitioner has also been dismissed by respondent No. 1 by the order dated 16 -3 -1998. Both on the question of bona fide need and comparison of hardship, the Courts below have recorded concurrent findings of fact. It is well settled that normally the concurrent findings of fact are not to be interfered with by this Court in exercise of powers under Article 226 of the Constitution of India. In the present case, however, learned counsel for the petitioner argued that the finding of the Court below with regard to the accommodation already in occupation of the landlord in the disputed house is vitiated on account of non -consideration of material evidence. It is argued by the petitioner's counsel that as per the tenant's case the accommodation which was in occupation of Rampher tenant has also come in occupation of the landlord which he had concealed before the Courts below. According to the landlord's case Rampher was still occupying the same as tenant and has not vacated the same. Learned counsel for the petitioner invited the attention of the Court to the two voters list which were filed before the lower appellate court and pointed out that in the voters list of earlier years, the name of Rampher was mentioned against the house in question whereas in the later voter list, his name did not find a mention therein. On the basis of this, learned counsel for the petitioner argued that had Rampher been in actual possession of the tenanted portion of the house in question, his name must have been shown in that voter list also. He further pointed out that when commission was issued Rampher's portion was found locked and nobody was found in actual physical occupation. The finding of the lower appellate court is based on the affidavit filed by the parties and also on the counter -foils of rent receipts produced on behalf of the landlord but there has been no consideration of the aforesaid voter list filed by the tenant -petitioner with his affidavit before the lower appellate court. This piece of evidence was certainly material having a hearing on the question of bona fide need of the landlord for additional accommodation. Non -consideration of this vitiates the finding of the lower appellate court recorded on the question of bona fide need of the landlord and the same cannot be sustained. The case will, therefore, have to be remanded back to the lower appellate court for a fresh decision on the question of bona fide need of the landlord. However, it is made clear that while considering the question of bona fide need of the landlord for additional accommodation, finding recorded by the lower appellate court in respect of the house No. 12/424, Gwal Toli, Kanpur, and in respect of the accommodation alleged to have been vacated by Shri Vimal Kumar shall not be touched nor the finding recorded in respect of hardship of the parties. The lower appellate court shall confine itself only in respect of the accommodation in house in question which is alleged to be in the tenancy of Rampher. The lower appellate court on a consideration of entire material on record will record a specific finding whether or not Rampher was still in occupation and if he is not found so, the lower appellate court shall further examine the question whether or not the need of the landlord for additional accommodation stands fulfilled if not how much more accommodation is still required by him to meet out his personal requirements.
(3.) FOR the above reasons, this writ petition is allowed. The case is remanded back to the lower appellate authority. The appeal shall be registered to its original number and shall be heard and decided expeditiously, preferably within two months avoiding all unnecessary adjournment from the date a certified copy of this order is produced. It is further made clear that after remand the appeal may be heard by the District Judge himself or by any Addl. District Judge other than Shri Ajay Kumar Singh, Special Judge, Kanpur Nagar, who earlier decided the appeal by the impugned order dated 16 -3 -1998. Let a certified copy of this order be issued to the learned counsel for the petitioner, on payment of usual charges, within four days.;