UDAI PRATAP SINGH Vs. 4TH A D J

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) This is landlords' writ petition arising out of proceedings for eviction/release initiated by them on the ground of bonafide need against tenant original respondent no.2 Munni Lal since deceased and survived by legal representatives in the form of case no.28 of 1982. Property in dispute is a shop. Prescribed authority/Ist Additional Munsif, Varanasi allowed the release application through order dated 25.11.1982. Against the said judgment and order dated 25.11.1982 passed by the Prescribed Authority tenant original respondent no.2 filed appeal (Rent Appeal No.489 of 1982). The appeal was allowed by IV Additional District Judge, Varanasi on 30.7.1984 and order of release passed by the Prescribed Authority was set aside. The order passed by the lower appellate court has been challenged through this writ petition. This writ petition was dismissed as infructuous on 10.8.2007 holding that as 22 years had passed after the decision of the appellate court, circumstances must have been entirely changed during this period. Against the said judgment landlords petitioners filed appeal before the Supreme Court. The Supreme Court allowed the appeal through order dated 6.4.2009 and remanded the matter to the High Court to decide the writ petition again. The appeal was numbered as Civil Appeal No.2202 of 2009. Supreme Court directed the High Court to decide the petition on merit. In several authorities including Sait Nagjee Pursushotham and Co. Ltd. v. Vimalabai Prabhulal, 2006 AIR(SC) 770 Supreme Court has held that normally the need is to be seen as on the date of filing of the release application except in case of death of the person for whose need release application is filed. In the order dated 6.4.2009 it has also been observed by the Supreme Court that petitioners were not responsible for the delay in disposal of the writ petition.

(3.) Earlier also release application had been filed for need of Anil Kumar one of the landlords which was allowed. However, during pendency of appeal against the said release order Anil Kumar died. Accordingly, appellate court allowed the appeal holding that the need had vanished. However, liberty was granted that in case there was bonafide need for the heirs of Anil Kumar also then fresh release application could be filed. Thereafter fresh release application was filed giving rise to the instant writ petition.