DEVABRATA BHATTACHARYA Vs. FIRST ADDITIONAL DISTRICT JUDGE ALLAHABAD

JUDGEMENT

(1.) THIS petition arises out of a proceedings under Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act (hereinafter called the Act). The landlord moved an application for an order of eviction against a tenant on the ground of bona fide need. The prescribed authority found that the need was bona fide and accordingly granted the application. The First Additional District Judge has 'dismissed the appeal. The tenant has now filed the present Writ Petition. Learned counsel contended that the order is not in accordance with law because the finding about the need being bona fide is perverse and because the comparison of the hardships to be suffered by the landlord and tenant has not been done. He has also urged that the proceedings were barred by the principle of constructive res judicata.

(2.) THE appellate authority has taken into consideration the various facts for determining the bona fides of the need of the landlord. He has found that the house he lives in is in a delapidated condition and that two of the rooms had fallen down. The report of the licensed architect shows that three rooms had fallen down before April 23, 1973 and the house was of mud. There is also the finding that the landlord's son was occupying another house. These circumstan ces cannot be said to be irrelevant. Whether a need is bona fide or not depend on the motivation that propels a person to ask for vaca tion of the accommodation. If the need is genuine for the occupation of the house by the landlord it will be deemed a bona fide need. Here the findings is that the need is genuine. In support of his second contention, learned counsel relied on Rule 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules. The main provision of Rule 16(1) provides for com parison of hardships to be suffered by allowing or rejecting the appli cation. In the present case there is a fidning that the number of members in the family of the landlord is large and the accommodation in their possession is very small. There is also the finding that the family of the tenant consists of two persons only. The principle of greatest good of the greatest number applied reversely would be a relevant consideration in determining as to who will suffer greater hardship. The finding of the court below cannot be deemed to be arbitrary or perverse.

(3.) THE question of res judicata hardly arises in the present case. The point was not raised before the appellate authority as is apparent from the judgment. There is no allegation in the writ petition that the point was raised before the appellate court but it did not consider it. Further, the principle of res judicata applies only to situation which are static and not to changing situations. In the present case, the conditions of the landlord's house is in the process of constant deterioration, his son has been transferred and the landlord needs additional accommodation to accommodate him. In these circums tances, the principle of res judicata can have no application unless the law specifically so provides. The impugned appellate order cannot, for the reasons stated above, be held either to suffer from any error of jurisdiction or manifest error of law. The Writ petition accordingly fails and is dismissed. Parties will bear their own costs. The stay order is vacated.