RAM CHARAN LAL Vs. IIIRD ADDITIONAL JUDGE

JUDGEMENT

(1.) IN this landlord's petition, arising out of proceedings initiated for shop, under Section 21(1)(a) of U.P. Act XIII of 1972, as it was bonafide needed for carrying on business of his sons and grandsons, the controversy centres round the finding recorded by appellate authority that the need of petitioners was not genuine and he has not come within clean hands.

(2.) FOR deciding either of these it is essential to narrate the facts in brief. In the application filed by petition, he based his claim mainly on three circumstances necessity of shop for his two sons, Om Prakash and Shital Prasad who were unemployed and were keen to do business, moral responsibility of setting his grandsons Vinod and Arvind Kumar, sons of his eldest son Ram Prasad who due to paucity of accommodation, to carry on business, shifted to Gorakhpur with his father-in-law, but whose sons were anxious to do business, sub-letting of shop after bifurcating it without petitioners consent and availability of opposite party's own godown and three shops in a different locality. Although all these were denied by opposite party and it was claimed that Om Prakash was running printing press and Shital Prasad a shop of general merchandise but what impressed the prescribed authority most was the goodwill which opposite party most have earned, therefore, he passed order directing opposite party to let out to petitioner from his own shop area equivalent to that he was occupying on some rent on his failure to do so vacate the shop within one years. In appeal the order was set aside as prescribed authority exceeded his jurisdiction in creating tenancy while deciding application for release. On merit the appellate authority decided against petitioner on bonafide requirement because in the application the shop was claims for Om Prakash and Shital Prasad whereas in his statement on oath it was claimed for Om Prakash and Arvind Kumar. For Shital Prashad only this much was said that he was carrying on his business of general merchandise on payment. From this appellate authority inferred that need of Shital Prasad was not pressed. And as regards Arvind Kumar it having not been pleaded the petitioner was not entitled to put forward it in statement on oath. Having eliminated Shital Prasad and Arvind Kumar he took up the case of Om Prakash and found it not genuine for two reasons one failure of petitioner to disclose nature of business which he intended to carry on if shop was vacated and that he was running a printing press. For the latter there was no evidence or material on record but because initially petitioner had claimed that he was doing nothing and on opposite party's plea that he was running printing press petitioner stated that it had been winded up. According to him this could not be accepted because petitioner was not stating truth whereas opposite party had not conceded anything. But more than failure to establish bonafide requirement the appellate authority was influenced by conduct of petitioner. According to him petitioner had everred in his application that his eldest son had shifted to Gorakhpur due to Paucity of accommodation when in his objection to recovery to loan filed in 1967 was stated by him before Industries Officer that his son had separated after partition. Not only this, petitioner according to appellate authority did not disclose that his son Om Prakash was running printing press. And even when he was concerned he could only say that it had been winded up. Further, Om Prakhash did not appears to clear this. Apart from these falsehoods and concealments he drew adverse inference against petitioner because in the application, age of Om Prakash and Shital Prasad was disclosed at 24 and 22 whereases in cross-examination. Petitioner admitted it to be 40 and 33. This according to appellate authority was purposive as sons age 40 and 30 could not have remained unsettled. To add to all these circumstances was sale by petitioner of one of the shops few years prior to filing of application for release. The appellate authority not find any merit in the claim of petitioner that need of petitioner could not be judged by sale made earlier. He held that if petitioner would have needed the shop for his sons and grandsons then he could not have sold the shop a few years ago.

(3.) IT cannot be disputed that opposite party is entitled to support order of the authority on grounds or even evidence which is not mentioned in the order. At the same time it is beyond doubt that initial duty of adjudicating questions of fact is on the authority entrusted with this responsibility under the statue. And most of these documents have not been referred at all. But that alone may not be sufficient and it has to be examined if the two findings recorded by appellate authority are based on relevant consideration and can be accepted as finding of fact binding on this court in writ jurisdiction.