Poonam Srivastav, J. - (1.) HEARD Sri A. K. Goyal, learned counsel for the petitioner.
(2.) THE petitioner is owner and landlord of shop No. 299, Sarain Kham, Sunhari Masjid, Bareilly wherein the respondent is tenant at the rate of Rs. 100 per month. Petitioner filed an application under Section 21 (1) (a) of U. P. Act No. 13 of 1972 (hereinafter referred as the Act) for release of the shop which was registered as P.A. Case No. 21 of 2004. In support of the release application, the petitioner filed his own affidavit as P.W. 1 and that of son Rajat Garg PW-2 and Murlidhar Agarwal and Manish Chand Agarwal PW-3 and PW-4 respectively. THE tenant contested the said application and filed a written statement. It is brought to my notice that the tenant instead of concluding the arguments before the prescribed authority, sought frivolous adjournments which were granted on 2.8.2006 and 8.8.2006 subject to payment of' cost. The tenant in order to further delay the proceedings filed a belated application dated 12.7.2007 alongwith an affidavit dated 13.7.2007 seeking time to deposit the cost. The petitioner filed counter- affidavit thereto stating that the tenant was not able to devote any time in the shop as he alongwith his wife has commenced Saree business under the name and style of Sharmile Sarees by opening a shop at his residence 261, Kalibari, Bareilly as such he is not to suffer any hardship by release of the shop. Two original receipts dated 22.7.2007 issued by the wife of the tenant to the purchasers of the Saree were enclosed alongwith aforesaid counter-affidavit. The tenant took time to file affidavit of his wife in rebuttal of the receipts. However, instead of filing affidavit of his wife, the tenant filed an affidavit stating that on account of expenses of medical treatment he was under debt and would suffer great hardship if evicted from the shop. The prescribed authority vide judgment and order dated 20.8.2007 allowed the release application directing two months' time to the tenant to vacate the shop. The prescribed authority recorded a categorical finding that the landlord has bona fide need for the shop in question for settling his unemployed son in an independent business. The factors of comparative hardship was also decided against the tenant. The prescribed authority observed that the landlord had bona fide need for the shop and would suffer greater hardship, if the shop was not released. The prescribed authority further observed that after Saree business of the tenant suffered a set back, shoe business was set up in the shop recently, as such the question of goodwill if any, of Saree business lost significance. The prescribed authority further placed reliance on the case Ratan Sahgal v. 1st Additional District Judge, Kanpur Nagar, 2004 (1) ARC 110 and held that comparative hardship cannot be held to be in favour of the tenant merely on the basis of long possession. The tenant's contention that he is an old man and has to repay the loan taken for his medical treatment as such would suffer greater hardship, was not accepted to be relevant for decision of the factor of comparative hardship.
(3.) AGGRIEVED from the impugned judgment of the prescribed authority, the tenant preferred Rent Control Appeal No. 18 of 2007. The appellate court vide its order dated 19.1.2008 allowed the appeal. Though the appellate court affirmed the finding about the bona fide need of the landlord recorded by the prescribed authority yet set aside the release order only on the ground that the prescribed authority, committed error in deciding "comparative hardship" in favour of the landlord under misapprehension as if provision of Rule 16 (2) (a) was mandatory. It is apparent from the foregoing circumstances that the tenant has all along adopted delaying tactics and it is probably for this reason he had not appeared in this Court despite service of notice. The submission of the learned counsel for the petitioner challenging the impugned order of the appellate court is that it is wholly arbitrary, illegal and against the well settled law that goodwill on account of long occupation of tenant cannot operate as an absolute bar to maintainability of the release application as it is only one of the considerations for deciding the comparative hardship. Further submission is that it has already been held by this Hon'ble Court in Kaushal Kumar Gupta v. Bishun Prasad and others, 2006 (1) ARC 73 paragraph 6 that mere long possession of tenant is no ground to reject the release application when bona fide need is clearly established as landlord and every adult member of his family is entitled to have separate business.;