SUDHA AGRAWAL Vs. XTH ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) The appellant herein is the landlord of the premises in dispute. The premises consists of ground floor and first floor. The respondent-tenant is in occupation of the said premises. The ground floor of the premises is being used by the tenant for non-residential purposes, whereas the first floor is being used for residential purpose. The appellant-landlord filed an application before the Prescribed Authority, Varanasi, for eviction of the respondent-tenant on the ground that he required the premises for his bona fide need. In the said application, the landlord also took a plea that the son of respondent-tenant who was ordinarily residing with him has constructed a residential premises in the city of Varanasi, and as such under explanation (i) to fourth proviso of sub-section (1) of Section 21 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the 'Act'), the tenant besides being debarred from contesting the application, his need has to be presumed bona fide. A written statement was filed by the respondent tenant wherein the allegations made in the application were denied. The Prescribed Authority took the view that since the premises was let out to the tenant partially for non-residential purposes and partially for residential purposes, the benefit of explanation (i) to fourth proviso of sub-section (1) of Section 21 of the Act is not available to the landlord. The Prescribed Authority also found that the need set up by the landlord is not bona fide. Consequently, the application for eviction of the tenant from the premises was rejected by the Prescribed Authority.

(2.) Aggrieved, the landlord-appellant preferred an appeal which was dismissed by the appellate authority affirming the finding of the Prescribed Authority. The writ petition filed by the landlord has also been dismissed by the High Court.

(3.) It is urged by the counsel appearing on behalf of the appellant that in view of explanation (i) to fourth proviso of sub-section (1) of Section 21 of the Act, not only that the tenant was debarred from contesting the application filed by the landlord, but also the need set up by the landlord in the said application has to be presumed bona fide. Learned counsel appearing for the tenant, however, argued that in the present case, explanation (i) to fourth proviso of sub-section (1) of Section 21 of the Act is not attracted and in any case, even if it is held that the explanation (i) is applicable in the present case, the landlord independently has to prove that his need is bona fide and the alleged need set out in the application cannot be presumed to be bona fide.