JUDGMENT S.U. Khan, J.
1. This is landlord's writ petition arising out of eviction/ release proceedings initiated by him against tenant/respondent No. 2 on the ground of bona fide need under Section 21 of the U.P. Act No. 13 of 1972, hereinafter referred to as U.P. Rent Control Act (U.P.R.C. Act in short). Release application was registered as P.A. Case No. 2 of 1993 before Prescribed Authority'/Munsif (West), Ballia. The property in dispute is a shop. Along with release application map of the property in dispute and adjoining properties belonging to the landlord was annexed. In the release application it was stated that previously landlord was carrying on medical practice in two shops shown by letters A and C in the map, that landlord had to accommodate his son who had passed graduation and was unemployed hence one of the shops in his occupation shown by letters C was given by him to his son in which he installed photostat machine for business purpose. It was pleaded that due to reduction in the accommodation landlord's medical practice was affected hence he required the shop in tenancy occupation of the petitioner shown by letter B which is just adjacent to the shop A in which landlord was carrying on his medical profession. Landlord asserted that previously he used shop A for examining the patients and writing prescription and in shop C he had his davakhana containing medicines from where patients got the medicines prescribed by Doctor landlord.
2. Tenant pleaded that the son of the landlord was B.A. and B.Ed. and he was headmaster in a Junior High School and that the shop C was initially in tenancy occupation of another tenant which was got vacated about two years before the filing of the release application and in the said shop photostat machine and lamination machine had been installed. Tenant further leaded that on the first floor of the accommodation in dispute and the adjoining accommodation landlord constructed a big hall about one year before the filing of the release application and let out that to Sahara India Finance Company. Tenant further pleaded that landlord had no medical degree and in shop A there was only medical store in which landlord through his employee Afzal Ansari carried on the business of selling medicines and that Afzal Ansari had left the service of landlord and shop was also closed for a long time and old medicines were stored therein.
3. Landlord filed affidavits of different persons and different documents including pharmacist registration certificate, certificate of practice in Homeopathy medicines issued by Registrar, State Board of Homeopathy Medicine, Lucknow.
4. Prescribed Authority held that landlord had proved that he was practicing in Homeopathy medicines and contrary version of the tenant was not correct.
5. The prescribed authority also held that tenant failed to prove that son of the landlord was headmaster in the Junior High School. Prescribed authority also did not believe the version of the tenant that in the shop shown by letter C. Ajmal Ansari was carrying on the business of cycle repairing and he had vacated the said shop only about two years before. Affidavit filed by Ajmal Ansari denying the said fact was believed by the Prescribed Authority. Thereafter prescribed authority discussed some material on record and held that relationship between tenant and landlord was not good.
6. Tenant admitted that he had taken another shop on rent in Mohalla Gandhi but according to him he was using the same as godown.
7. Ultimately prescribed authority held that the need of the landlord was bona fide and he would suffer greater hardship if release application was not allowed than the hardship which would be suffered by the tenant in case of eviction. Consequently prescribed authority by judgment and order dated 31.3.1995, allowed the release application. Tenant respondents filed an appeal against judgment and order passed by prescribed authority being Rent Control Appeal No. 5 of 1995. IInd Additional District Judge, Ballia, through judgment and order dated 6.9.1997, allowed the appeal, hence this writ petition by landlord.
8. Lower appellate court held that landlord did not bring on record any evidence to show that what was his income from the shop in dispute by writing prescription to the patients and by selling the medicines and that it was also not stated that how many patients per day landlord received and what was his per day income. Lower appellate court further held that no document was produced to show that landlord had good medical practice. Lower appellate court also held that neither the name of the compounder or salesman of the landlord was mentioned nor it was mentioned that medicines of how much amount were sold by said salesman/compounder.
9. The lower appellate court after minutely examining the evidence filed by the landlord held that there was some deficiency in the said evidence. Each and every thing stated by the landlord and supported by affidavits of different persons and documents was disbelieved by lower appellate court on the ground that the evidence was not sufficient and to prove the said facts some more evidence should have been adduced. However, on the other hand, lower appellate court was extremely liberal for the tenant. The tenant only stated in the affidavit that son of the landlord was employed as headmaster in the Junior High School. Absolutely no documentary- evidence in support of this assertion was filed. If a person is employed in a school, the fact is mentioned in several documents and it can very well be proved by documents. Landlord denied the said fact. Lower appellate court believed the version of the tenant on the ground that landlord could not by proper evidence disprove the same. This was very strange approach. For proving negative fact, apart from statement nothing more can be brought on record.
10. The main emphasis of the lower appellate court was on the fact that landlord could not show that his medical practice was of such scale which required more accommodation. Even a doctor having small number of patients per day is entitled to have reasonable accommodation for his clinic. Judicial notice may be taken of the fact that often allopathic medicines, which are prescribed by doctors, may be purchased from any shop. However, Homeopathic doctors invariably give medicines to the patients by themselves. No such shop may be found in any city where Homeopathic medicines are sold to the patients on the prescription. The tenant suggested that shop A could be partitioned and in one portion landlord, doctor could check the patients and write prescriptions and from the other portion his compounder could give medicines to patients. This suggestion was self-serving. Tenant has got no business to dictate the landlord as to how he can squeeze his need in smaller portion.
11. The tenant had alleged that one Ajmal Ansari was tenant in the shop shown by letter C and he had vacated the same about two years before filing of the release application. The said Ajmal Ansari filed his affidavit denying the said fact, There was no reason to disbelieve his affidavit. The lower appellate court without assigning any reason disbelieved the said fact. In my opinion the entire approach of the lower appellate court was perverse and not in accordance with the correct meaning of bona fide need used under Section 21 of the Act. The said words do not mean dire urgent or acute.
12. Regarding the shop taken on rent by the tenant, the lower appellate court accepted the version of the tenant that he was using the said shop as godown. If the tenant is using a shop as godown, it is his look. In such situation it cannot be said that the said shop is not available to the tenant. As the tenant has already got another shop on rent, hence question of comparative hardship has to be decided against him. Rule 16 (2) (b) which is quoted below is squarely attracted to the fact of the case.
"16 (2) (b) Where the tenant has available with him suitable accommodation to which he can shift his business without substantial loss there shall be greater justification for allowing the application ;"
13. Even otherwise tenant did not bring on record any evidence to show that he made any efforts to purchase or take on rent any alternative accommodation after filing of release application. It was also very relevant for deciding the question of comparative hardship against the tenant (vide AIR 2003 SC 2713).
14. Along with written arguments filed by learned counsel for tenant respondent No. 2, copy of an affidavit of landlord petitioner sworn on 17.1.2001 filed by him before Assistant Registrar, Funds (Firms), Societies and Chits, Varanasi, Division Varanasi in File No. B-3064 has been filed. In para 9 of the said affidavit it was stated that Javed Iqbal Ansari (son of petitioner) is headmaster of Hazrat Aasi Junior High School. No notice can be taken of the copy of a document, which is filed along with written arguments. The said copy has not been filed along with any affidavit. Even if for the sake of arguments it is accepted that the son of landlord is headmaster in some school still the fact remains that tenant has categorically admitted that in the shop shown by letter C in the map landlord has installed photostat and lamination machines. If the statement of the tenant that son of the landlord is head master in school is taken to be correct then it would mean that landlord himself is carrying on the business of making copies from Photostat machine and laminating the documents from lamination machine. If the landlord in addition to his medical practice in Homeopathy has started the said business also, then he cannot be put to disadvantage due to that. Tenant himself repeatedly asserted that landlord was not having good medical practice. In view of this no fault can be found with the landlord if he starts additional business for augmenting his income. Learned counsel for tenant respondent also argued that during the pendency of writ petition landlord petitioner got vacated some of his shops from his previous tenant and let out the same to other tenants. For this argument no foundation has been laid in the form of any affidavit hence it cannot be considered.
15. Learned counsel for tenant respondent has cited the following authorities :
(1) Ashok Kumar and Ors. v. Sita Ram, 2001 (3) AWC 1997 (SC) : 2001 (43) ALR 783 (SC) ;
(2) Khubi Ram v. IVth Additional District Judge, 2003 UPRCC 222.
16. In the first authority the High Court reversed the judgment of the appellate court on the ground that appellate court had not discussed the aspect of comparative hardship. The Supreme Court held that when appellate court did not find the need of the landlord to be bona fide, it was not at all necessary to record the finding of comparative hardship. In the said authority Supreme Court also found that judgment of lower appellate court which was reversed by the High Court was quite reasonable based upon material on record and it gave cogent reasons to differ from the judgment of the prescribed authority.
17. In this regard another authority of the Supreme Court may also be considered, which is in Sushila v. A.D.J., 2003 (1) ARC 256 (SC). In that case also prescribed authority had allowed the release application of the landlord. Lower appellate court reversed the said judgment and High Court in exercise of writ jurisdiction refused to interfere on the ground that the judgment of the lower appellate court was based on findings of fact. Supreme Court criticised the High Court for acting in a mechanical manner "High Court also erred in dealing with the matter mechanically" (para 12). The Supreme Court in the same para further held that appellate court was in error in setting aside the order passed by the trial court allowing the application of the petitioner-landlady. In para 4 of the aforesaid judgment it was held by the Supreme Court "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."
18. The other authority of the High Court Khubi Ram v. IVth A.D.J., cited by learned counsel for landlord respondent also does not help the tenant. In the said authority there are several such findings, which go against the tenant.
19. Accordingly writ petition is allowed. Judgment and order passed by the lower appellate court is set aside and judgment and order passed by prescribed authority is restored. Tenant respondent is granted time till 15.2.2005, to vacate provided that within one month from today he files an undertaking before the Prescribed Authority to the effect that on or before 15.2.2005, he will willingly vacate and hand over possession of the property in dispute to the landlord petitioner.