JAGAT NARAIN SRIVASTAVA Vs. SITA RAM SHARMA

JUDGEMENT

(1.) Shri Sita Ram Sharma, respondent No. 1, filed an application under Sec. 21(l)(a) of U.P. Act No. XIII of 1972 for release of the portion in occupation of the petitioner on the ground that the accommodation in his possession being insufficient, he required the same for his use and occupation. The application was resisted by the petitioner. He did not only assert that the need of the landlord was not genuine, but also claimed that his require. meat for the premises was greater than that of respondent No. 1. The application was rejected by the Prescribed, Authority but, in appeal preferred by respondent No. 1, the judgment of the prescribed Authority was set aside and the application was granted. Feeling aggrieved, the tenant has come to this Court by means of the present writ petition.

(2.) Two questions were urged by the learned counsel for the petitioner. One of them was that the learned District Judge committed an error in admitting the will in appeal and holding on its basis that the application filed by respondent No. 1 was maintainable. He invited my attention to Rule 15 and asserted that as the said rule requires an application to be filed by all the landlords, the apply cation in the instant case having been filed only by Sita Ram Sharma was liable to be rejected. He also contended that as the attestation of the Will had not been proved in accordance with Sec. 68 of the Evidence Act, the Will ought to have been ignored. In the counter-affidavit, respondent No. 1 alleged that the only ground on which the application for admission of additional evidence was challenged by the petitioner was that the case was not covered by Order 41 Rule 27 C P.C. The petitioner did not raise the question of admissibility of the will before the learned District Judge. The assertion made in the counter-affidavit appears to be correct. As the document has also been exhibited, the first ground urged by the learned counsel for the petitioner has no substance, especially when there is nothing on record to indicate that the case was fought out by him on this ground in the court below.

(3.) The other submission of the learned counsal appearing for the petitioner was that the learned District judge having not compared the question of hardship, as required by the proviso added to Sec. 21 by U.P. Act. No. 28 of 1976, the judgment of the learned District Judge is erroneous. Before this proviso was added to Sec. 21, Rule 16 of the Rules framed under the Act provided for consideration of likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application. The submission further was that the learned District Judge only considered the needs of both the parties and did not compare the hardships. The argument of the learned Counsel that in the absence of the consideration of the question of hardship, the judgment of the learned District Judge could not be said to have complied with the mandatory requirements of the aforesaid provision, is not correct. The learned District Judge, after consideration of the evidence of both the parties, made the following observations :