IMPORTANT POINT
Appellate Court was in error in setting aside the order of eviction passed by prescribed authority on ground of bona fide need of petitioner landlady for the shop to establish her son and further petition is not liable to fail on consideration of comparative hardship of the tenant and the landlady in the light of Rule 16(2) of U.P. Urban Building (Regulation of Letting, Rent and Eviction) Rules, 1972.

Headnote:(i) U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972-Section 21(1)(a)-Eviction petition on ground of bona fide personal need for commercial purpose-Decreed by prescribed authority but reversed by appellate authority-Reversal based on perverse reasoning and misreading of document-High Court not interfering-Whether correct? (No)-Need of the landlady for the shop, held bona fide to establish her son Prem Prakash.
       Held : The appellate court has upset the findings recorded by the trial court which is though permissible but in doing so the whole approach of the appellate court seems to be quite unjustified and legally unsustainable. At one place the appellate court tried to doubt the certificate of Prem Prakash having undergone electrical training course from the Industrial Training Institute, Banda on the ground that his residence was shown as village Lukhtara whereas the industrial training institute was in Banda. It is then observed at another place that it had not been indicated as to what kind of job Prem Prakash could get in the government with the certificate he possessed. Yet another reason which strongly weighed with the appellate court was that as to why it could not be possible for Prem Prakash to work with his father at the latter s shop which is adjacent to the shop in question. Moreso, if phoopha (husband of the sister of father of Prem Prakash) could work with his father then Prem Prakash could also work there. We find that Prem Prakash is a young man who is unemployed. He is married and has children. There is every justification for him or for his mother to settle him in life independently. He cannot be compelled to join his father in his Goldsmith and money lending work in his small shop. In our opinion, he is entitled to start business of his own choice independently. The appellate court took a view, as indicated above, which is palpably wrong and wholly unacceptable. The petitioner s case that Baij Nath has one shop in the house purchased by him in Chowk Bazar, the respondent had admitted only to the extent that he had purchased the house but denied existence of any shop. To prove the fact, it appears that the petitioner-appellant filed copy of the sale-deed. The appellate court observed "on the other hand it is clear on perusal of the sale-deed that the sale-deed of only house was executed in favour of the opposite party". In this connection learned counsel for the petitioner has drawn our attention to the copy of the sale-deed which is on the record. The narration in the sale-deed is to the effect that the vendor had purchased the house as bounded in the sale-deed in Mohalla Chowk Bazar including the shop from one Duli Chand in 1937 and the aforesaid property was being transferred in favour of Baij Nath. It leaves no doubt that the sale-deed was in respect of the house as well as the shop. It is surprising to find that the appellate court came to the conclusion that the sale-deed was in respect of the house alone. This is a clear mis-reading of the document. Therefore, the conclusion drawn by the appellate court that the sale-deed was only in respect of the house without including a shop is also vitiated. It is thus clear that Baij Nath has another shop at his disposal in Chowk Bazar. (Paras 4, 5 & 6)
       (ii) U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972-Section 21(1) fourth proviso and U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972-Rule 16(2)-Application for release on the ground of personal requirement-Rule to judge comparative hardship-Appellate Court reversed trial Court and held hardship to tenant would be more than to landlady-Whether correct? (No).
       Held : To say that son of the petitioner-landlady may remain unemployed but the shop in question must continue to remain in occupancy of the tenant to whom yet another shop is available in Chowk Bazar would not withstand the guidelines and tests laid down in sub-rule (2) of Rule 16 of the Rules of 1972. (Para 8)
       Availability of another suitable accommodation to the tenant, waters down the weight attached to the longer period of tenancy as a factor to be considered as provided under Clause (a) of Sub Rule 2 of Rule 16. Yet another factor which may in some cases be relevant under clause (c) is where the existing business of the landlord is quite huge and extensive leaving aside the proposed business to be set up, there would be lesser justification to allow the application. The idea behind sub clause (c) is apparent i.e. where the landlord runs a huge business eviction may not be resorted to for expansion or diversification of the business by uprooting a tenant having a small business for a very long period of time. In such a situation if eviction is ordered it is definitely bound to cause greater hardship to the tenant. In the case in hand we find that even though the period of tenancy of the respondent is no doubt long but availability of another shop to him where he can very well shift his business as found by the Prescribed Authority, neutralises the factor of length of tenancy in the accommodation in dispute. We further find that the landlady has no other shop where she can establish her son who is married and unemployed. There is nothing on the record to indicate that the business of father of Prem Prakash is so huge or that it is a very flourishing business so as to attract application of Clause [c] of Rule 16(2). As observed earlier it is clear that length of period of tenancy as provided under clause (a) of Sub-Rule 2 of Rule 16 of the Rules, 1972 is only one of the factors to be taken into account in context with other facts and circumstances of the case. It cannot be a sole criterion or deciding factor to order or not the eviction of the tenant. Considering the facts in the light of Rule 16 pressed into service on behalf of the respondent, we find that according to the guidelines provided therein balance tilts in favour of the unemployed son of the landlady whose need is certainly bonafide and has also been so accepted by the respondent before us. (Paras 9 and 10)
       We make it clear that even by excluding the factor of Prem Parkash being technically educated, otherwise as well we find that the need and requirement of the landlady is bonafide even after considering the same in the light of Rule 16 of the Rules and in the background of comparative hardship which we find would be more to the landlady, in the event of disallowing the application for eviction. In view of the above discussions we feel that the appellate court was in error in setting aside the order passed by the trial court allowing the application of the petitioner-landlady and the High Court also erred in dealing with the matter mechanically. (Paras 11 and 12)
       Held consequently : In the result, the appeal is allowed with costs throughout. The judgments and orders passed by the High Court as well as the appellate court are set aside and the order passed by the Munsif (Prescribed Authority) Banda allowing petitioner s application for eviction of tenant- Baij Nath is restored. The shop being in possession of the respondent No. 1 since long, we allow him four months time to handover its vacant possession to the petitioner-landlady, on his clearing all the arrears of rent, if any, and on continuing to pay the same regularly and further on furnishing the usual undertaking to that effect in this court within a period of four weeks from today. (Paras 13 and 14)

JUDGMENT

Brijesh Kumar, J.-The dispute in this appeal relates to a shop under the tenancy of the respondent - Baij Nath. The petitioner - landlady had purchased the shop in question in the year 1977 from one Smt. Kanti Devi. It measures 2 x 5.3 meters. The petitioner moved a petition under Section 21 (1) (a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short the Act ) on the ground of bonafide need to settle her major and married son in life, who was to start the business of electrical goods and utensils in the shop in question. The petition was contested unsuccessfully by the respondent-Baij Nath. The appeal preferred by the tenant-respondent was, however, allowed. The writ petition filed by the petitioner in the High Court was dismissed upholding the order of reversal passed in appeal, observing that under the writ jurisdiction findings of fact cannot be disturbed unless they are manifestly unjust. Hence, this appeal impugning the order of the High Court.

2. The appellant-landlady, as noted earlier, had purchased the disputed shop in August, 1977, when her children were not grown up. Her eldest son Prem Prakash was later married and had also passed some electrical certificate course from I.T.I. Banda but he remained unemployed. It was thus necessary to get the shop vacated for her son to start his own business in electrical goods and utensils. It may be mentioned here that there is another shop adjacent to the shop in question which too was purchased at the same time i.e. in the year 1977 by her husband who is carrying on his work as Goldsmith and money lending business in that shop. She had also come forward with a case that her relations with her husband have not been cordial but it has not been accepted by the courts below. The shop in question was initially in the tenancy of Mool Chand, father of the respondent Baij Nath who was carrying on kirana business in the said shop. After the death of Mool Chand, Baij Nath started the business in that shop. According to the respondent it was not correct that shop in question was needed by the landlady. It has also been his case that at the time of the purchase of the shop in question petitioner knew that it was in occupation of the tenant. It was also alleged that husband of the appellant had purchased yet another shop in Chowk Bazar in the name of his brother-in-law Khunni; it has however not been found proved by the Courts.

3. According to the petitioner-landlady Baij Nath-the tenant has a shop in Gursahai Road as well as another shop in Chowk Bazar which was purchased by him. In so far the shop in Gursahai Road is concerned, according to the respondent, prior to the death of his father Mool Chand he himself had been running his shop in Gursahai Road but after the death of Mool Chand he started his business in the shop in question and he established his son Rajendra Kumar in the shop in Gursahai Road. In regard to the other shop, his case is that it is a residential house and not a shop but it has not been accepted by the Prescribed Authority. It has also been found that the said shop is quite near to the shop in question. Considering all the facts and circumstances, the trial Court allowed the petition with a finding that the landlady had bonafide need which was more pressing as compared to that of the tenant and thus ordered for his eviction.

4. The appellate court, while allowing the appeal filed by the tenant-respondent, held that the petitioner -landlady failed to prove that the shop was needed by her bonafide for her son. On the question of comparative hardship it has been held that in case the application is allowed the tenant would suffer greater hardship as he has been the tenant of the accommodation since a very long time. The appellate court has upset the findings recorded by the trial court which is though permissible but in doing so the whole approach of the appellate court seems to be quite unjustified and legally unsus

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