VIJAY SETHI Vs. ANIL KUMAR GUPTA AND ORS.

JUDGEMENT

(1.) The petitioner is assailing the order dated 8 Aug. 2014 passed by the Prescribed Authority allowing the release application under Sec. 21(1)(a) of Act No. XIII of 1972; the order dated 20 Jan. 2015 passed by the Appellate Court rejecting the appeal thus, affirming the order of the Prescribed Authority.

(2.) The respondent/landlord set up need for release of the shop in question for establishing the business of first and second respondents, which was contested by the petitioner/tenant on the ground that the first and second respondents were engaged as co-owner in the business of the third and fourth respondents, the business was big enough to accommodate all of them. The tenant had no alternate shop suitable for setting up his business which has been running for the last 40 years which has a goodwill. The Court below on considering the rival contentions and upon appreciating the material and evidence on record returned a finding of fact that the need set up by the respondent/landlord was bonafide and genuine, the comparative hardship was in favour of the respondent/landlord, consequently, the shop in dispute was released.

(3.) The sole submission advanced by the learned Senior Advocate appearing on behalf of the petitioner is that the courts below have not considered the part release of the disputed premises as contemplated under rule 16(1)(d) of the Rules framed under the Act No. XIII of 1972. It is, therefore, submitted that it was incumbent upon and the duty of the court below to have considered as to whether the landlord's need would have been satisfied by releasing part of the premises. It is admitted that the plea of Rule 16 was not raised before the courts below. It is submitted that even though the plea was not raised by the tenant still the court was bound to have considered the part release of the premises. In support of his submission, reliance has been placed upon Supreme Court judgments rendered in Smt. Raj Rani Mehrotra Vs. IInd Additional District Judge and other, 1980 ARC 311 and Dinesh Kumar Vs. Yusuf Ali, 2010 (2) ARC 723. Rule 16 (1) and (2) is extracted :