Point of Law: In respect of comparative hardship tenant did not show that he made any efforts to search alternative accommodation after filing of the release application. This was sufficient to tilt the balance of comparative hardship against the tenant. The appellate court while allowing the appeal was very much impressed by the fact that for about 65 years the shop in dispute was in tenancy occupation of tenant. Mere long possession is not sufficient to reject the release application. The rent is Rs. 31.25/-per month. For a shop in Kanpur Nagar such rent is rather ridiculous. It is virtually as well as actually no rent. By paying such highly inadequate rent, tenant must have saved lot of money, which he might have been required to pay as proper rent. Money saved is money earned. Moreover, the tenant was doing business from the shop in Kanpur for 65 years. Accordingly he must be in a position either to purchase the shop or to take on good rent another shop. In this direction no efforts were made by the tenant. It is admitted that Radhey Shyam is doing business from another shop. In view of this his hardship is nil. This is an additional ground to allow the release application

JUDGMENT :

1. Heard Sri Pramod Kumar Srivastava and Sri Deepak Singh, learned counsel for the petitioner and Sri K.M. Garg, learned counsel for the respondent.

2. By way of present writ petition, the petitioner is challenging the order dated 24.09.2019 passed by XII Additional District Judge, Kanpur Nagar in Rent Appeal No. 26 of 2017-Prakash Chandra Vs. Ritesh Bhargawa and judgment and order dated 06.04.2017 passed by prescribed Authority/Judge Small Causes Court, Kanpur in Rent Case No. 18 of 2014 (Ritesh Bhargawa Vs. Prakash Chandra), under Section 21(a) of Uttar Pradesh (Urban Buildings (Regulation of Letting, Rent and Eviction Act), 1972 (U.P. Act No. 13 of 1972) (hereinafter referred to as the Act, 1972).

3. The brief facts of the case are that the landlord-respondent has filed release application under Section 21(a) of the Act, 1972 on the ground of bonafide need for vacation of shop No. 50/05 Naughara, Kanpur Nagar, which was registered as Rent Case No. 19/14 in the court of Prescribed Authority. After issuance of notice, pleadings have been exchanged by fililng written statement, affidavit and rejoinder affidavit. The Prescribed Authority has framed three issues, which are as follows:-

(i) Whether there is a relationship of landlord or tenant between the parties?

(ii) Whether the need of landlord of the shop in question is bonafide?

(iii) Whether the comparative hardship of the landlord is greater than the tenant?

4. Considering the entire pleadings as well as evidence on record, release application was allowed by the Prescribed Authority vide order dated 6.4.2017 with direction to the tenant-petitioner to vacate the shop in question within 60 days. Against the said order, Rent Appeal No. 26 of 2017 was preferred and after hearing both the parties, same was dismissed by the Appellate Authority vide order dated 24.9.2019 affirming the judgment of the Prescribed Authority with direction to vacate the shop in question within 60 days. Hence, this writ petition.

5. Sri P.K. Srivastava, learned counsel for the petitioner has assailed both the orders on three grounds; the first ground is the maintainability of release application, second ground is bonafide need and third ground is comparative hardship. The main emphasis is about the maintainability of the writ petition.

6. Learned counsel for the petitioner submitted that original tenant of the disputed shop was Sri Laxmi Chandra, grandfather of the petitioner, who took the shop in tenancy from the grandfather of the landlord-respondent in the year 1960. Sri Laxmi Chandra died in the year 1979 leaving behind surviving two sons including father of the petitioner and three daughters. After death of Laxmi Chandra, shop was inherited to his legal heirs as provided under Section 3 of the Hindu Succession Act, 1956. Father of the petitioner is still alive and petitioner is not tenant, therefore, the Prescribed Authority lacks jurisdiction and release application filed by respondent under Section 21(a) of the Act, 1972 against the petitioner is not maintainable. He next submitted that he has taken specific plea in written statement that the shop in question was let out in tenancy of grandfather of petitioner in the year 1960. Earlier rent was being paid at the rate of Rs. 30/-per month and later on from time to time, rent was increased and lastly it was being paid at the rate of Rs. 1300/-per month. He next submitted that there is no denial of this fact in replica, therefore, under the provisions of Order 8 Rule 5 C.P.C., it is treated to be correct. He next submitted that though this plea of maintainability was not taken either in the written statement filed in the rent case or rent appeal filed before the appellate authority, but it goes to the gross root of the case, therefore, it was open for him to take this plea at any stage even before the last court. He again submitted that once the release application filed under Section 21(2) of the Act, 1972 is not maintainable, the Prescribed A