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Mohan Lal v. Viith A.D.J. & Others - WRIT - A No. 5569 of 1985  RD-AH 7329 (12 December 2005)
Civil Misc. Writ Petition No. 5569 of 1985
Mohan Lal Versus VII Additional District judge, Kanpur and others.
Hon'ble S.U.Khan J
This is landlord's writ petition arising out of eviction/ release proceedings initiated by him against tenant respondent No.3. Both landlord as well as tenant have died and have been substituted by their legal representatives.
Property in dispute is a shop dimension of which are 16 feet by 30 feet. The landlord in the release application set up the need for three of his sons who are now petitioners. Prescribed authority/ I Additional Civil Judge, Kanpur dismissed the release application (Rent Case No. 133 of 1982) through judgment and order dated 17.5.1983. Against the said judgment and order landlord original petitioner filed Rent Appeal No. 58 of 1983. VII Additional District Judge, Kanpur who heard and decided the appeal found that one of the three sons of the landlord did not require any shop however landlord had proved bonafide need of the shop for business of his two sons. In the said finding there is absolutely no error. However appellate court released half of the shop through judgment and order dated 31.1.1985. This writ petition has been filed by the landlord against the said judgment of the appellate court. Tenant also filed writ petition No. 5465 of 1985. Tenant's writ petition has already been dismissed in default.
Lower appellate court on the basis of Commissioner's report found that only a part of shop in dispute was being used by the tenant as office in which some chairs, table and almirahs were there. It is admitted that tenant is manufacturing buckets on large scale from some other accommodation. At more than one place lower appellate court has held that business of tenant was of quite a large magnitude. If it is so then tenant could have very well arranged another office. It has been held by the Supreme Court in the case of B.C.Bhutada Vs. G.R.Mundada AIR 2003 SC 2713 that tenant shall make efforts to search alternative accommodation after filing of the release application and if he does not do so then question of comparative hardship may be decided against him. Apart from it under Rule 10(3) of the Rules framed under U.P Act No.13 of 1972 such tenant is entitled to apply for allotment of another accommodation. The tenant did not show that he made any effort to search alternative accommodation or filed allotment application for allotment of another building. Lower appellate court had found that landlord needed the shop for two of his sons. In view of this it was not at all legal to divide the shop. If the shop had been required for only one son then it might have been divided.
Accordingly writ petition is allowed. Judgment and order passed by the lower appellate court in so far as it is against the landlord (refusing to release the entire shop) and that of prescribed authority are set-aside. Release application of the landlord is allowed in respect of the entire shop.
As no one has appeared on behalf of legal representatives of tenant respondent No.3 hence before issuing writ of possession/ Parvana Dakhal on the execution application under section 23 of the Act which may be filed by the landlord in pursuance of this judgment, prescribed authority shall ensure service of notice upon legal representatives of respondent No.3 i.e Pawan Kumar Jain, Gagan Kumar Jain and Smt. Shakuntala Jain.
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