MOHAMMAD JAMAN KHAN Vs. DISTRICT JUDGE

JUDGEMENT

(1.) By means of the present writ petition under Article 226 of the Constitution of India, petitioner-tenant has challenged the orders dated 18.3.1993 and 8.11.1993. passed by the appellate authority as well as the prescribed authority under U. P. Act No. 13 of 1972.

(2.) The facts leading to the filing of the present writ petition are that the respondent No. 3-landlord filed an application initially in the year 1984 under Section 21 (1) (a) of U. P. Act No. 13 of 1972 (hereinafter shall be referred to as the 'Act'), against the petitioner-tenant for release of the accommodation, which is non-residential accommodation, on the ground that his elder son Prakash is unemployed and he wants to engage him in business. This application has been rejected by the Prescribed Authority, vide its order dated 4.11.1985 on the ground that the landlord has concealed one accommodation, which is in his possession, where he could have set up his sons, if at all he requires the accommodation in question bona fide. This order of the prescribed authority was affirmed by the appellate authority vide its order dated 10,3.1986.

(3.) The present application under Section 21 (1) (a) of the Act out of which this writ petition arises, was filed in the year 1990, which was registered as Case No. 41 of 1990, on the ground that the landlord wants to set up his younger son who was 15 years of age at the time when the earlier application was rejected by the prescribed authority in the year 1985. The petitioner-tenant contested the application, inter alia, on the ground that the need is not bona fide and the tilt of the comparative hardship is in favour of the petitioner-tenant and has also raised an objection on the maintainability of the second application filed in the year 1990 that in the earlier application with regard to the need of the another son in the year 1985, it was found by the prescribed authority as well as by the appellate authority that the need set up by the landlord is not bona fide when the need of elder son was set up on the very ground that he is unemployed and landlord wants to set up him in new business. The landlord contested the aforesaid plea that this application is not based on the same and similar facts. After the rejection of first application in the year 1985. the circumstances have changed, his son Narendra. who was only 15 years of age at that time, has now grown up and also has been married and has children, therefore, the requirement is bona fide and the second application cannot be said to be barred by principle of res judicata as is alleged by the petitioner-tenant. The prescribed authority, after relying upon decision of this Court, has held that the present application, which has been filed in the year 1990 cannot be said to be barred by principle of res judicata or analogues principles as the need is different and the circumstances have changed and thus there is no bar under Statute that another application cannot be filed. The prescribed authority after considering the case of the respective landlord and the tenant arrived at the conclusion that the need of the landlord is bona fide and more pressing than that of the petitioner-tenant. The prescribed authority also found that tilt of the comparative hardship is in favour of the landlord. He, therefore, allowed the present application filed by the landlord and directed to release of the accommodation in question in exercise of its powers under Section 21(1) (a) of U. P. Act No. 13 of 1972.