JAI KISHAN PRASAD KHANDELWAL CHHOTEY LAL GUPTA Vs. VIITH ADDITIONAL DISTRICT JUDGE DAU DAYAL SHANKER LAL

JUDGEMENT

(1.) This is landlord's writ petition arising out of eviction/release proceedings initiated by him against respondents 2 and 3 Dau Dayal and Chandra Bhan, the tenants on the ground of bonafide need under Section 21 of UP. Act No. 13 of 1972. All the parties i.e. original petitioner landlord as well as both the tenants i.e. respondent Nos. 2 and 3 have died and have been substituted by their legal representatives. Property in dispute is a shop. Release application was filed for the need of one of the sons of landlord who is now one of the petitioners in the writ petition. Release application was registered as P.A. case No. 2 of 1980. Prescribed Authority/1st Additional Civil Judge, Agra through judgment and order dated 26.3.1982 'allowed the release application against which tenants-respondents Nos. 2 and 3 filed rent control appeal No. 32 of 1983. VII A.D.J., Agra through judgment and order dated 27.2.1985 allowed; the appeal set aside the judgment and order of the Prescribed authority and rejected the release application hence this writ petition by landlord. Shop in dispute is situate in premises No. 6/240 Belanganj, Agra. Rate of rent is Rs. 60/- per month. Appellate court agreed with the Prescribed authority that the need of the landlord to settle his son in business was quite bonafide. The contention of the tenant that the said son could participate in the business of his elder brother was rightly turned down by both the courts below. Supreme Court in Susheela v. A.D.J. AIR2003 SC 780, JT2002 (10)SC 410, (2003)2 SCC28 has held that every adult member of landlord's family is entitled to separatetbusiness. There is absolutely no error in the concurrent findings recorded by both the courts below holding the need of the landlord to be bonafide..

(2.) The lower appellate court reversed the judgment of the Prescribed authority on three points.

(3.) Firstly, the lower appellate court held that both the opposite parties in the release application i.e. Dau Dayal and Chandra Bhan were tenants and in the release application nothing was said regarding bonafide need/hardship of Chandra Bhan hence release application was liable to be dismissed. Need or comparative hardship of the tenant is not to be pleaded by the landlord but by the tenant (vide ), AIR 1993 SC 1449, (1993)1 GLR655a, JT1993 (4)SC 97, 1993 (1)SCALE629, (1993)2 SCC458) H.M. Doshi v. B.R.L.R.Das.