Point of Law: No eviction can be ordered unless ground seeking eviction is made out, even if parties had entered into a compromise and that the invalidity on that count can even be raised in execution.

JUDGMENT :

Vivek Kumar Birla, J.

1. Heard Sri Nagendra Kumar Srivastava, learned counsel for the petitioners-tenants and Sri Mohit Kumar along with Sri Mohit Kumar Shukla, learned counsel appearing for the respondents-landlords.

2. Leading petition has been filed challenging the impugned orders dated 1.11.1994 and 16.11.2010 passed by the Prescribed Authority/Judge Small Causes Courts, Bulandshahar.

3. The petitioners herein are the tenants of the shop no. 58, Chowk Bazar, Bulandshahar. Initially the said shop was in the tenancy of grandfather of petitioners late Jugmandar Das Jain. After his death, as per family settlement between the legal heirs of late Jugmandar Das Jain, the shop in question was given to Sri Raj Bahadur Jain by means of inheritance from his father. Thereafter, the respondents-landlords initiated the proceedings under Section 21(1)A of the Act No. 13 of 1972 against Sri Raj Bahadur Jain. In the release application, it was stated that the shop in question is required to fulfill the need of his family and the need of the landlord is bona fide and genuine. Thereafter, father of the petitioner late Raj Bahadur Jain filed his written statement in the release application stating therein that the need of the landlord is not bona fide and genuine. On 1.11.1994 one alleged compromise application was filed before the prescribed authority, on the basis whereof the prescribed authority passed the impugned order dated 1.11.1994, against which the tenants-petitioners filed a suit being Original Suit No. 380 of 2004, which was decreed vide judgement and order dated 25.10.2008 wherein it was recorded that after the death of father of the petitioners Raj Bahadur Jain the tenancy right has been inherited by the petitioners and they are the tenants of the shop in question. No appeal against the said judgement was filed by the respondents-landlords. Thereafter, the respondent-landlord Surendra Kumar Jain filed an application dated 18.11.2004 under Section 23 of the Act No. 13 of 1972 for execution of the order dated 1.11.1994, against which petitioners-tenants filed their objection on 16.3.2005. The prescribed authority allowed the application 4A filed under Section 23 of the Act No. 13 of 1972 vide impugned judgement and order dated 16.11.2010. Hence the present petition.

4. Submission of learned counsel for the tenants-petitioners is that the orders impugned herein are illegal, perverse and suffer from manifest error of law. It is next submitted that in view of provisions of Section 21(1)A of Act No. 13 of 1972 for release of the shop in question, prescribed authority ought to record its findings in respect of the bona fide need and comparative hardship. It is further submitted that the court below in its judgement 25.10.2008 passed in original suit no. 380 of 2004 recorded a finding that after the death of Raj Bahadur Jain the tenancy right devolved to his legal heirs. It is further submitted that application filed by the respondent-landlord under Section 23 of the Act No. 13 of 1972 was not maintainable as all the legal heirs of Raj Bahadur Jain was not impleaded. He lastly submits that the respondent-landlord has already got the other shop and the same was let out to another person and as such, the need of the respondent-landlord is not at all bona fide.

5. Learned counsel for the petitioners has placed reliance on the judgements of Ratan Lal vs. Additional District Judge, Bulandshahar and others 1979 (5) ALR 509, Firozi Lal Jain vs. Man Mal 1970 (3) SCC 181, Barkat Ali & Another vs. Badri Narain (D) by Lrs. 2008 (4) SCC 615, Pancham vs. Ram Gen and others 2009 (3) ARC 593, Jagdish Lal Sah vs. Additional District Judge, Nainital & Ors. 2006 (1) JCLR 276 (Uttaranchal), Gian Devi Anand vs. Jeevan Kumar & Ors. 1985 (2) SCC 683, Gauri Shanker: Suresh Gupta: Rajat Roy vs. Union of India: Rajdevsingh: Sobha Singh Private Limited