B.L.LOOMBA, J. - (1.) THE petitioners in this writ petition are three brothers owning a residential house situate in mohalla Shankata Devi in the town of Lakhimpur. They have been living in a part of the house while in remaining part respondent No. 2 Shyam Behari Lal is in occupation on a monthly rent of Rs. 15/- since 1983. It is the undisputed position that the petitioner moved an application under Section 21 of U.P. Act XIII of 72 seeking release of the disputed accommodation in the house in question on the ground that it was needed bonafide for use and occupation of the petitioners and their family members. The prescribed authority by his judgment and order dated 27.11.84 allowed the release application with the finding that the need of the landlord-petitioners for the accommodation in question was genuine and pressing and that even on evaluation of the comparable hardship the balance was tilting in favour of the landlord. It was observed that the respondent-tenant is bachelor, he being a press reporter of Pioneer Lucknow was having one room in his use for which the Pioneer Limited was paying monthly rent of Rs. 150/- and that he could easily shift to live in that room and could get an alternate accommodation. The appeal of the respondent-tenant was, however, allowed by II Additional District Judge by his judgment and order dated 26.4.85. He took into consideration the subsequent development, namely, that petitioner No. 2 has since got his own house constructed in another mohalla of the town of Lakhimpur, it was held that the accommodation which was already in the use of the families of the three brothers would now be sufficient for the families of two brothers, the third having built his own house and shifted there. So far as petitioner No. 3 Dhanraj is concerned he has no children and his family is limited to himself and his wife. In view of the appellate Court, one room, as such, is sufficient for petitioner No. 3. The family of petitioner Harbans Lal consists of husband and wife, three sons and one daughter, in all six members. The family of petitioner No. 3 Harbans Lal as per finding recorded by the appellate Court can easily live in the remaining accommodation with the petitioner-landlords, being two rooms, two stores, courtyard, latrine etc.
(2.) RESPONDENT Shyam Behari Lal as already stated is bachelor. He is, however, admittedly living in the accommodation in question with his brothers and their families. The case set up by him has been that this accommodation was allowed in his favour in the year 1963 and since then he is living with his brothers and their families without any objection from the landlord and they are all entitled to live there. The respondent-tenant is bachelor as stated above, as would appear from the judgment of the prescribed authority dated 27.11.84, the persons who are said to be living with the respondent, as per his affidavit dated 5.4.84 include his brother, his brother's wife, three daughters and one son. This means that the respondent his brother and the family of his brother, all combined, consists of seven persons. Two other persons, namely, Munna Lal and Rama Shanker were also stated to be living with him. They are described as first parental cousins. A copy of the voters' list was also filed by the respondent which shows that Radhey Shyam, Munna Lal, Shobha and Rama Shanker lived with the respondent. According to the definition of family as given in Section 3(g) of the Act, none of these persons is included in the family of the respondent. Learned counsel for the petitioner on that basis submits that the need of the respondent alone could rightfully be considered by the learned Appellate Authority is wrong and not according to law. From perusal of the judgment of the appellate Court vide paragraph 15 thereof, it would appear that the persons living with the respondents were not found to be members of his family but their need was considered in the context of the fact that they were living with the respondent-tenant since 1963 without any objection from the landlords and for that reason their possession would be deemed to be lawful under Section 4 of the Act. On this point the Prescribed Authority relying on a decision in N.S. Datta v. VII Addl. District Judge, Allahabad, (1984)1 All Rent Case 113 : 1984 All LJ 256, held that the persons living with the respondent-tenant were required to be ignored while considering the comparable hardship between the landlord and tenant. N.S. Datta's case (supra) related to commercial premises. It was held that the need of the partners whom the tenant may choose to induct in his business does not require consideration of hardship. However, the facts of that case are of no direct help in the instant case.
(3.) LEARNED counsel for the respondent has relied upon the decision in Har Prasad v. VIII Additional District and Sessions Judge, Kanpur, (1986)2 All Rent Cas 106. The question was whether the need of the elder brother of the landlady's husband could rightfully be considered for purposes of assessing bonafide and genuine need for release of the house. The landlady was a widow and the brother of her late husband, namely, Devi Charan, with his wife were found to be residing with the landlady from the lifetime of her husband as members of a joint Hindu family. Devi Charan, it was held, was looking after the family after the death of the landlady's husband could rightfully be considered for purposes of assessing bonafide and genuine need for release of the house. The landlady was a widow and the brother of her late husband, namely, Devi Charan, with his wife were found to be residing with the landlady from the lifetime of her husband as members of a joint Hindu family. Devi Charan, it was held, was looking after the family after the death of the landlady's husband. There was old and aged father-in-law of the landlady to be looked after. It was observed that after her husband's death she has to rely on the support of Devi Charan to enable her to manage her affairs. Under those circumstances, it was really the requirement of the landlady rather than that of Devi Charan which was relevant in order to appreciate the genuine and bonafide need of the landlady for release of the accommodation.;