JUDGMENT

MISRA, J.—The present appeal by special leave is directed against the judgment D/- 19th of January, 1978 of the Allahabad High Court, The short question for consideration in this appeal is whether a sub-tenant is entitled to the protection of the fourth proviso to S. 21 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.

2. The material facts to bring out the point for consideration lie in a narrow compass. One Murari Lal was the owner of the disputed shop. During his lifetime a partition took place between him and the other members of his family in 1937. The shop in dispute fell to the share of Murari Lal and Narendra Mohan, his eldest son. After the death of Murari Lal in 1960 his interest devolved upon his sons Rajendra Kumar and Brijendra Kumar along with their brother Narendra Mohan.

3. It appears that the shop in suit had been let out to one Krishan Kumar. He in his turn inducted Shyam Babu, the present appellant, as his sub-tenant in 1962. Rajendra Kumar and Brijendra Kumar filed a suit No. 181 of 1968 in the Court of Munsif for the eviction of the original tenant as well as the sub-tenant, on the ground of illegal subletting as also for the recovery of arrears of rent. That suit was contested by the tenant as well as the sub-tenant on the ground that the sub-tenancy had been created with the consent of the then landlord and therefore sub-letting was legal.

4. The learned Munsif dismissed the suit by his order dated 24th April, 1973 holding that the sub-tenancy created by Krishan Kumar in favour of the appellant Shyam Babu was with the consent of the landlord and as such neither Krishan Kumar nor Shyam Babu was liable to eviction on that ground.

5. It appears that during the pendency of the suit the U. P. Urban Buildings (Regulation of Letting, Rent and, Eviction) Act, 1972 (hereinafter referred to as the new Act) came into force on 15th July, 1972, Rajendra Kumar and Brijendra Kumar, the landlords moved an application under S. 21 of the new Act for the release of the premises in occupation of the appellant and Krishan Kumar on the ground that the same is bona fide required for their personal use. The application was resisted by the tenant as well as the sub-tenant. They denied that the need of the landlords was genuine. They also set up their own needs and contended that they would suffer greater hardship if the application for release was allowed.

6. The prescribed authority allowed the application with respect to the portion in occupation of the appellant Shyam Babu but dismissed the same as against the original tenant Krishan Kumar. Feeling aggrieved the landlords as well as the sub-tenant filed two separate appeals before the District Judge to the extent the order went against them. The landlords were aggrieved by the order insofar as their application was rejected against Krishan Kumar, the original tenant, while the appellant challenged the release of the premises granted to the landlords against him. Both the appeals were disposed of by a common judgment of the District Judge on 24th March, 1977 confirming the order passed by the prescribed authority. The landlords submitted to the order passed by the District Judge. The appellant, however, sought to challenge the order of the District Judge by filing a writ petition in the High Court.

7. The contention raised by the appellant was that the prescribed authority as well as the Appellate Court committed a manifest error of law in allowing the application for release of the premises in favour of the landlords without considering the comparative hardship likely to be caused to the appellant or to the respondent landlords by the order of release or refusal to release the premises within the meaning of fourth proviso to S. 21 of the new Act. In the opinion of the High Court the proviso contemplated the consideration of the likely hardship of the tenant or the landlord and as the appellant was only a sub-tenant the proviso did n