Prakash Krishna, J. - (1.) THE petitioner Lala Ram Nath, who has died during the pendency of the writ petition, filed an application for release of the shop under Section 21(1)(a) of U.P. Act No. 13 of 1972 against the respondent no. 2 Smt. Sona Devi which was registered as P.A. Case No. 31 of 1984, for release and ejectment of the respondent no.2.
(2.) THE release of the disputed shop, situate in Mohalla Home Ganj, was sought by the landlord to settle his son Prem Behari in the disputed shop. THE allegation was that he is not doing any business. He has completed his education upto M.A. and is sitting idle due to non-availability of any shop. It was further pleaded that most of the time, the disputed shop remains closed, as the respondent tenant is carrying on business of selling Khowa (milk cake) from her residence. THE said application was contested on the pleas inter- alia that Prem Behari is not sitting idle and he is carrying on the business from a shop situate in village Bijpuri Kheda, at Mainpuri Road. THE allegation that Prem Behari is sitting idle was hotly contested by the respondent tenant. The parties led evidence in support of their respective cases. The Prescribed Authority initially dismissed the release application on the ground that the need as set up by the landlord is not bonafide and genuine. The said order was carried in appeal by the petitioner. The said appeal was allowed by the judgment and order dated 25-9-1989 and the matter was remanded back with certain directions to the Prescribed Authority to redecide the release application. The appellate court found that the need as set up by the landlord is bonafide and genuine. The matter was remanded back to record proper findings on the question of comparative hardship. After remand, the matter was reconsidered by the Prescribed Authority. During the pendency of the proceedings, after remand, an application was filed by the respondent tenant on the ground that certain new developments have taken place, as a result thereof, the need as set up by the landlord has vanished. The Prescribed Authority, after remand, allowed the release application on the findings that the need as set up by the landlord is bonafide and genuine and it is the landlord, who will suffer greater hardship, in case the release application is rejected, vide order dated 19-9-1991. This order was challenged in P.A. Appeal No. 13 of 1991, at the instance of the respondent tenant. The appellate court, by the impugned order dated 4-3-1993, allowed the appeal on the finding that the need is not bonafide and genuine and set aside the order of the Prescribed Authority and rejected the release application filed by the landlord.
(3.) THE appellate court, on the earlier occasion found that the need of landlord is bonafide one, but on the question of comparative hardship the matter was remanded, to find out if the tenant could shift the business elsewhere at her residence in particular. It was, thus, not an open remand order. Learned counsel for the petitioner, in support of the present writ petition, submits the following two points:- (1)The question of bonafide need was not open to be examined either by the Prescribed Authority or by the appellate authority as the said finding on the question of bonafide need had attained finality. In the earlier order passed by the appellate court remanding the matter it was held that the need set up by the landlord is bonafide and genuine and was not subject- matter of challenge any further before higher court. (2)The finding recorded by the appellate court on the question of comparative hardship is vitiated, the litigation has been pending since the year 1984 and the tenant has not taken any steps to get another accommodation. The property in dispute was earlier in the tenancy of father of the tenant and after his death, the tenancy right has been devolved upon the present tenant being daughter of the deceased tenant.;