PREM KUMARI JAIN Vs. DISTRICT JUDGE RAMPUR

JUDGEMENT

(1.) THIS writ petition is directed against a judgment of the District Judge, Rampur, dated 26-8-1976. The dispute relates to a shop of which the petitioner was the owner. It had been let out to Ram Das, respondent 3. The premises had been purchased by the petitioner sometime in 1970. After purchasing the said shop, she filed a suit for ejectment against respondent 3 on the ground of illegal subletting. The suit was contested by respondent 3. It was dismissed on the finding that the petitioner had failed to establish subletting. The petitioner took the matter in appeal. The appeal was also dismissed. Thereafter, in 1974, the petitioner filed an application under Section 21(1)(a) of U.P. Act XIII of 1972 for release of the shop against respondent 3, on the ground that the same was required by her for setting her eldest son Santosh Kumar Jain. She alleged that Santosh Kumar Jain was unemployed and was required to be established in a business. In the application, the petitioner also alleged that since respondent 3 had not been using the shop himself and had given it to Ashok Kumar and Subhash Chand, sons of Shanti Prasad, the need of respondent 3 was not bona fide. Before the Prescribed Authority, the parties adduced evidence. The Prescribed Authority held that the need of the petitioner was not bona fide, and that respondent 3 had not let out the premises to anyone. The appeal filed by the petitioner was also dismissed, Hence, this writ. Sri V. K. Khanna, counsel appearing for the petitioner, contended that neither the Appellate Authority affirmed nor set aside the finding of the Prescribed Authority on the question of bona fide requirement of the premises by the landlord, therefore, the petitioner was deprived of getting a finding, and, as such, the judgment of the appellate authority was illegal. The submission is well founded. A reading of the judgment of the appellate authority would show that he only mentioned the contentions raised on behalf of both the parties and did not decide the same. The appellate authority was required to give a decision on merits of the appeal, after considering the evidence of the parties. Sri G. D. Srivastava, counsel appearing for respondent 3, contended that since the judgment of the appellate authority was that of affirmance, the omission to give the detailed reasons did not render the judgment illegal. There would have been no difficulty in accepting the argument of Sri G. D. Srivastava if I would have found that the learned District Judge had agreed with the findings of the Prescribed Authority. But, there is nothing in the judgment of the appellate authority which could even show that he agreed with the findings of the Prescribed Authority and found that the need of the landlady was not bona fide. As observed above the appellate authority narrated the facts of the case and mentioned the points argued, and thereafter dismissed the appeal. To my mind, this does not amount to a decision. Another point urged by the learned counsel for the petitioner was that as respondent 3 had sublet the premises in dispute, the shop would be deemed to have fallen vacant under Section 12(3) and Section 25 U.P. Act XIII of 1972. On the basis of the aforesaid submission, the learned counsel for the petitioner urged that the courts below should have held that the shop was vacant and released the same in favour of the petitioner. I am unable to subscribe to the submis sion made by the learned counsel for the petitioner. In an application filed under section 21 of U.P. Act XIII of 1972, a landlord is required to establish that his need for the premises is bona fide, If he fails to establish his need, the application filed by him is liable to be rejected irrespective of the fact that the tenant does not require the same. The establishment of need of a premises by a landlord is a condition precedent for allowing such an application. It is only after a landlord has established his bona fide requirement that the question of comparison arises. In considering, the question of comparison, the provisions of Section 12 (3) cannot be taken into account. Sub-section (4) of Section 12 provides that any building or part which a landlord or tenant has ceased to occupy within the meaning of sub-section (1). sub-section (2), sub-section (3), sub-section (3-A) or sub- section (3-B) shall, for the purposes of this Chapter, be deemed to be vacant. It would thus be seen that a vacancy can be deemed to have occurred only for the purposes of Chapter III in which Section 12 is to be found. The other relevant provision in that Chapter is Section 16. If, therefore, a vacancy occurs in one of the ways mentioned in any one of the sub-sections of Section 12, a vacancy shall be deemed to have occurred and a landlord would be entitled to file an application for release under Section 21: section 12 cannot be pressed into service for the purpose of deciding an application under Section 21. It is another thing that the fact of subletting may become relevant for the purpose of deciding the question of hardship and if the tenant is found to have sublet a premises, the landlord may contend that the requirement of the premises by the tenant is not genuine. But, I am unable to agree that a deemed vacancy which occurs, under Section 12 of the Act, can be considered for the purposes of an application for release under Section 21. It is the settled law that legal fictions are created only for some definite purposes. It is not within the powers of a Court to extend the amplitude of legal fictions created by Statutes. A legal fiction is to be limited for the purpose for which it was created and should not be extended beyond that legitimate field. In this view of the matter, lam unable to find substance in the second submission. But Mr. V. K. Khanna is certainly right in his submission that the appellate authority sould have compared the needs of the landlord with that of the tenant and found as to which of the two would suffer greater hardship. As the appellate authority did not consider the need from this point of view, it failed to perform its statutory duty. Accordingly, the judgment of the appel late authority is liable to be set aside. For these reasons, the writ petition succeeds and is allowed. The judgment of the appellate authority is quashed, and the District Judge, Rampur, is directed to decide the appeal afresh in accordance with law and the observations made above. There shall be no order as to costs.