BHAGWATI PRASAD Vs. IST ADDITIONAL DISTRICT JUDGE ALIGARH

JUDGEMENT

(1.) S. U. Khan, J. This is landlord's writ petition arising out of eviction/release proceedings initiated by him against the tenant- respondent under Section 21 of U. P. Act No. 13 of 1972 regarding the house in dispute of which the contesting respondent is tenant and petitioner is landlord.

(2.) THE release application was registered as Case No. 27 of 1977 and was allowed on 23-12-1980 by Prescribed Authority Hathras. Initially, release application was rejected on 31-1-1979 by Prescribed Authority. On the appeal of the landlord the appellate Court/v Additional District Judge, Aligarh by judgment and order dated 8-2-1980, reversed the said judgment and order and remanded the matter to the Prescribed Authority for reconsideration only for considering as to whether explanation (i) to Section 21 (1) was attracted or not and if not then comparative hardship of the parties must be considered. THE landlord had pointed out five accommodations belonging and available to the tenant. THE tenant had countered the said allegations by stating that alternative accommodations pointed out by the landlord were either commercial buildings or open land belonging to a firm of which the tenant was a partner, that the third property was a small house in which goods of the factory were stored and it was used as godown and the fifth property was only a room on the top storey and was in tenancy of the firm and was used as rest house, guest house for the agents of the firm and other persons. THE Prescribed Authority held that defendant had several properties available to him and his assertion that all these properties were being used for manufacturing/storing the medicines, was not believable. For this finding reliance was placed upon Drug Licence of the petitioner. THE trial Court, therefore, on 23 12. 1980 allowed the release application. THE tenant-respondent filed appeal against the aforesaid judgment and order. THE appeal (U. P. U. B. ). Appeal No. 4 of 1981) was allowed by 1st Additional District Judge, Aligarh, through judgment and order dated 6-11-1981 (Annexure 1 to this writ petition ). This writ petition is directed against the aforesaid judgment and order of the Lower Appellate Court.

(3.) REGARDING this property also the view of the Appellate Court is erroneous in law. If the building which can be used as the residential building is given by the tenant on rent to him of which he is also partner, then the aforesaid Explanation is squarely attracted. Even in the absence of the said Explanation this fact heavily favours the landlord in the matter of comparison of hardship.