FAIYAZ KHAN Vs. 2ND ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) This is landlord's writ petition arising out of eviction release proceedings initiated by Faiyaz Khan original landlord petitioner since deceased and survived by legal representatives against Dr. Aziz who died during pendency of the proceedings before prescribed authority and was substituted by respondent Nos. 3 to 13 in the form of cast; No. 102 of 1980. It was filed on the ground of bonafide need under Section 21 of U.P. Act No. 13 of 1972 before prescribed authority.

(2.) Release application was initially allowed on 29.1.1982 finding the need of the landlord to be bonafide and deciding the question of comparative hardship also in favour of the landlord. However the Said judgment was set-aside in part in appeal and the matter was remanded to the prescribed authority to decide the question of comparative hardship again. After remand prescribed authority/ Additional Civil Judge, Jhansi dismissed the release application on 31.10.1985, however in the said judgment also bonafide need of the landlord was found to be fully established. Release application was dismissed on two grounds; firstly it was held that Dr. Amin one of the substituted legal representatives of original tenant Dr. Aziz had inherited not only the tenancy but the practice of his father and in case he was ejected he would the patients of his father. The other ground taken by the prescribed authority for rejecting the release application was that the tenancy was continuing since the time of father of the applicant Faiyaz Khan and as his father had left behind other sons also (i.e. brothers of Faiyaz Khan) hence release application was not maintainable as the other landlords had not Signed the same in accordance with Rule 15(2) of the rules framed under the Act. This question is no more res integra. A full bench authority of this Court reported in Gopal Das v. A.D.J. 1987 (1) ARC 281 has held that even one of the landlords can file release application under Section 21 of the Act. Against the judgment and order dated 31.10.1985, landlord petitioner Faiyaz Khan filed R.C. Appeal No. 71 of 1985. II Additional District Judge, Jhansi dismissed the appeal through judgment and order dated 22.4.1989, hence this writ petition.

(3.) Appellant court also examined the question of bonafide need thoroughly and recorded independent finding to the effect that need the landlord faiyaz Khan to settle his son Sarfaraz Khan in business was quite bonafide (now Sarfaraz Khan is one of the petitioners substituted after the death of original petitioner Faiyaz Khan). All the courts at every stag held that Sarfaraz Khan was not doing any regular job and mere fact that he had a tempo did not satisiy his need. If for want of proper accommodation to start business landlord or any of his family members engages himself in temporary and casual jobs, it does not satisfy or substantially mitigate the need (Vide Ramkubai v. H.D. Chandak .