RAM JI TIWARI Vs. XI-A.D.J.

JUDGEMENT

(1.) THIS is landlord's writ petition arising out of eviction/release proceeding, initiated by him against tenant/respondents under section 21 of U.P. Act No. 13 of 1972. Release application registered as P.A. Case No. 59 of 1994 was allowed by Prescribed Authority/J.S.C.C., Gorakhpur through judgment and order dated 28.4.1998. Tenant filed appeal against the said judgment and order under section 22 of the Act being Misc. Appeal No. 8 of 1998. Appeal was allowed by XI -Addl. District Judge, Gorakhpur through judgment and order dated 27.10.1998. This writ petition is directed against the aforesaid judgment and order. Landlord Ram Ji Tiwari in his release application pleaded that he required the shop in dispute for establishing his grand sons Arvind and Ravindra in business.

(2.) APPELLATE Court wrongly held that landlord failed to discharge the burden to prove that Arvind and Ravindra were unemployed. In the facts and circumstances of the case, the burden to prove the negative fact i.e. non -employment of Arvind and Ravindra stood discharged by mere statement on oath of the landlord to that effect. The tenant denied the said fact. It was his duty to prove as to how the two grand sons of the landlord were employed. The tenant only pleaded that Arvind was employed in Bangkok alongwith his father Narsingh and Ravindra was looking after the agricultural fields of landlord in the village and driving tractor of his grand father i.e. landlord/applicant, and was also sitting at the shop of his uncle Ashok. Tenant did not show where and in what concern Arvind was employed. In any, case the need of Ravindra was fully established. Even if Ravindra was looking after the agricultural fields of his grand father, it was no bar for him to start some business from the shop in dispute. It was also not necessary to file affidavits of Arvind and Ravindra.

(3.) THE stand of tenant that Ravindra was looking after the agricultural fields of his grand father and also assisting in the business of his uncle were rather contradictory. If Ravindra was assisting his uncle in business then it was fit case to release the shop in order to enable Ravindra, to start business therefrom. Mere assistance or participation in business with some family member is no ground to reject release application for starting independent business as held by the Supreme Court in : A.I.R. 2003 S.C. 532.