Mahesh Chand and Ors. vs II Additional District Judge,Moradabad & Ors.

S.U. Khan, J.—This is landlord''s writ petition arising out of eviction/release proceedings initiated by him against tenant/respondent under Section 21 of U.P. Act No. 13 of 1972 which was numbered as P.A. Case No. 366 of 1977 and was dismissed by Prescribed Authority/J.S.C.C., Moradabad on 2231978. Against the said judgment and order landlord filed an appeal under Section 22 of the Act, being Civil Appeal No. 183 of 1978. The appeal was earlier dismissed by II Additional District Judge, Moradabad on 2011983. Against the said judgment a writ petition was filed being writ petition No. 8011 of 1979 which was allowed on 2011981 and the matter was remanded to the Appellate Court for reconsideration. Thereafter Appellate Court again by the impugned judgment and order dated 2011983 Annexure 8 to the writ petition dismissed the appeal. This writ petition is directed against the aforesaid order dated 2011983 passed by Appellate Court and order dated 2231978 passed by the Prescribed Authority.

In the release application it was mentioned that one of the son of landlord i.e. Mahesh Chand petitioner No. 1 was carrying on cloth business in a rented shop regarding which the landlord of the said shop had filed release application under Section 21 of the Act. Prescribed Authority rejected the release application giving rise to the instant writ petition on the ground that the said son of the landlord had not been evicted till then. Later on the said son was evicted. The Appellate Court in the impugned judgment has observed that aforesaid Mahesh Chand, one of the appellant before the lower Appellate Court had been dispossessed from the tenanted shop. It was observed that it had not been suggested on behalf of the respondent (tenant) that the appellant, had any other shop for carrying on the business. The need was ultimately found to be genuine and bona fide by the lower Appellate Court.

The lower Appellate Court dismissed the appeal on the ground of comparative hardship by holding that two elder sons of appellant No. 1 (Petitioner No. 2) were carrying on business from their residence as well as from a big shop. The Appellate Court also held that landlord''s family members are carrying on business of money lending and owned immovable property including groves and there was sufficient agricultural and rental income, hence there was no need for them to carry on business. Ultimately the Appellate Court held that in case of ejectment tenant would suffer greater hardship. In my opinion the view of the Appellate Court is erroneous in law. Every family member has got right to start his own business. The mere fact that other sons of landlord/petitioner No. 2 or one of his sons i.e. petitioner No. 1 does not deserve to start business of his own. The landlord (petitioner No. 1) had been ejected from the tenanted shop in which he was carrying on business. The tenant did not show that he made any efforts to search alternative shop after filing of release application. These facts are sufficient to tilt the balance of hardship in favour of landlord. It has been held in AIR 2003 SC 532 and 2003 (1) ARC 256 SC, that no landlord or any of his family members can be compelled to share in the family business or the business carried on by his brothers. An unnecessary controversy was raised regarding validity of compromise decree. Even if the compromise decree is ignored it will not make any difference.

Accordingly, writ petition is allowed. Impugned orders passed by the Appellate Court and prescribed authority are set aside. Release application of the landlord is allowed.

As no one for the respondent has appeared hence, Prescribed Authority before passing order of possession in favour of the landlord on his application which may be filed under Section 23 of U.P. Act No. 13 of 1972 should ensure service of notice upon tenant/respondent.