POONAM SRIVASTAV,J. - (1.) HEARD Sri Shesh Kumar, learned counsel for the petitioner, Sri H.N. Singh Advocate for the respondent no. 2.
(2.) THE dispute arises from a proceeding under Section 21(1)(a) of U.P. Act No. 13 of 1972 (hereinafter referred to as the Act) on 15.3.2004 by the landlord. The release application was numbered as P.A. Case No. 8 of 2004-Murari Lal Srivastava Vs. Ram Narayan and the same was allowed on 14.5.2007 directing the tenant to vacate the house within a period of two months. This judgment and order was challenged in an appeal under Section 22 of the Act which was decided by the Additional District Judge/Special Judge (E.C. Act), Etawah on 28.7.2009 and the judgment of the trial court was confirmed in appeal. Both the judgments are impugned in the instant writ petition. The submission of the learned counsel for the petitioner Sri Shesh Kumar is that the accommodation in question is a residential house. Initially the father of the contesting respondent was the tenant and after his death his sons stepped in shoes of their father and inherited the tenancy right. Immediately after their father's death, Civil Suit No. 545 of 1965 was instituted in the court of Munsif, Etawah for eviction of the petitioner which was dismissed. Subsequently a release application was filed in which the landlord was not successful. During pendency of the previous case No. 86 of 1975, a proceeding under 133 Cr.P.C. was also initiated before the S.D.M. The order passed in the said proceeding was challenged in a criminal revision and finally in Writ Petition No. 676 of 1975 and the entire proceedings under Section 133 Cr.P.C. was quashed in the writ petition. The contention of Sri Shesh Kumar is that having lost from all the courts, the present proceedings were initiated. The instant release application was set up on the ground that the accommodation in question was required for his personal use. When the house was let out to the petitioner's father, the respondent-landlord was unmarried but at present he has five sons. Three sons are married and they are living together with their wives and children. Two sons are still to be married. The landlord also mentioned in his release application that one of the petitioner's brother Balram Singh is living at Lucknow. The petitioner is Bus driver in U.P.S.R.T.C. and has constructed a house in Awanti Nagar, Civil Lines. The petitioner and all his brothers are joint tenants and they are still joint and living together in a new house. A written statement was filed by the tenant refuting the grounds of the release application. The claim of the landlord was that another house constructed in the same municipal area. This assertion was disputed since it was his brother who has shifted in the new house whereas the petitioner continued to occupy the accommodation in question in his own right as a tenant. It was strenuously contended by the tenant-petitioner that since all his previous attempts to oust the petitioner-tenant proved futile therefore, the present proceedings have been initiated as a last option.
(3.) LEARNED counsel has tried to challenge the judgments also on the legal ground that the appellate court has failed to record any finding on the question of bonafide need and only recorded its finding on the question of comparative hardship. In the circumstances, the judgment of the appellate court is vitiated in law.;