JUDGMENT S.U. Khan, J.
1. This is landlord's writ petition arising out of eviction/release proceedings initiated by him against respondents 2 and 3 Dau Dayal and Chandra Bhan, the tenants on the ground of bonafide need under Section 21 of UP. Act No. 13 of 1972. All the parties i.e. original petitioner - landlord as well as both the tenants i.e. respondent Nos. 2 and 3 have died and have been substituted by their legal representatives. Property in dispute is a shop. Release application was filed for the need of one of the sons of landlord who is now one of the petitioners in the writ petition. Release application was registered as P.A. case No. 2 of 1980. Prescribed Authority/1st Additional Civil Judge, Agra through judgment and order dated 26.3.1982 'allowed the release application against which tenants-respondents Nos. 2 and 3 filed rent control appeal No. 32 of 1983. VII A.D.J., Agra through judgment and order dated 27.2.1985 allowed; the appeal set aside the judgment and order of the Prescribed authority and rejected the release application hence this writ petition by landlord. Shop in dispute is situate in premises No. 6/240 Belanganj, Agra. Rate of rent is Rs. 60/- per month. Appellate court agreed with the Prescribed authority that the need of the landlord to settle his son in business was quite bonafide. The contention of the tenant that the said son could participate in the business of his elder brother was rightly turned down by both the courts below. Supreme Court in Susheela v. A.D.J. has held that every adult member of landlord's family is entitled to separatetbusiness. There is absolutely no error in the concurrent findings recorded by both the courts below holding the need of the landlord to be bonafide..
2. The lower appellate court reversed the judgment of the Prescribed authority on three points.
3. Firstly, the lower appellate court held that both the opposite parties in the release application i.e. Dau Dayal and Chandra Bhan were tenants and in the release application nothing was said regarding bonafide need/hardship of Chandra Bhan hence release application was liable to be dismissed. Need or comparative hardship of the tenant is not to be pleaded by the landlord but by the tenant (vide ) H.M. Doshi v. B.R.L.R.Das.
4. The second point taken by the lower appellate is that on 6.1.1971) an agreement had taken place in between landlord and tenants that tenants would leave a small portion of the shop for constructing staircase and landlord would not eject the tenants for ten years. Tenants fulfilled their part of the agreement and left a small portion of the shop in dispute. According to the lower appellate court release application therefore could not be filed till 6.1.1985. Appellate court decided the appeal on 27.2.1985 i.e. after more than ten years from the date of agreement. It is correct that in view of the agreement tenant could not be ejected until 6.1.1985. However, even if application was filed before the expiry of aforesaid period of ten years, there was no error of jurisdiction period of ten years during which landlord had agreed not to evict the tenant expired during pendency of release application then release application could very well be allowed. In this regard reference may be made to Bithal Bhai v. Union of India . In the said authority it has been held that a premature case can either be dismissed with liberty to file fresh case after maturity or it may be decided if during its pendency it has become mature. The question is that of discretion and not jurisdiction. Certain exceptions to the said principle have been provided in para 23 of the said authority. In the instant case no exception is applicable. Appeal is continuation of proceedings hence if period of ten years expired during pendency of appeal then the said fact could very well be taken note of by the? appellate court. In my opinion therefore appellate court was not justified in dismissing the appeal on the ground that release application had been film pre-mature. The agreed period of ten years had expired before the decision of appeal.
5. The third point taken by the appellate court is that as tenant was doing good business from the shop in dispute and had learned goodwill and as he had no other shop, he would suffer irreparable loss and point of comparative hardship lay in his favour. The fact that another son of the landlord was settled in business was also taken into consideration by the appellate court as it held that landlord had two shops i.e. the disputed one and the other shop in which one of his sons was doing business. When the shop in which the other sons was doing business was not taken into consideration by the appellate court while deciding the bonafide need for the son, for whose need release application was filed there was no sense in taking that into consideration while deciding comparative hardship. The Supreme Court in B.C. Bhutada v. G.R. Mundada has held that after filing of the release application tenant must make efforts either to purchase or to take on rent another shop and if he fails to do so then question of hardship has to be decided against him. Shop in dispute is situate in an important market of Agra which itself Is a quite big city. Tenant asserted that he had acquired a goodwill. It means that tenant must have earned good profit from the shop in dispute. He should have therefore tried to purchase another shop. In any case tenant did not bring on record that he made any efforts even to take on rent another shop. In view of this finding of the lower appellate court in respect of comparative hardship is also erroneous in law.
6. I am therefore of the opinion that judgment and order passed by the lower appellate court is erroneous in law.
7. Writ petition is therefore, allowed. Judgment and order passed by the lower appellate court is set aside. Judgment and order passed by the Prescribed authority is restored. Tenant-respondents are granted six months time to vacate provided that:
(1) Within one month from today they file an undertaking before the Prescribed Authority to the effect that on or before the expiry of aforesaid period of six months they will willingly vacate and handover possession of the shop in dispute to the landlord-petitioner.
(2) For this period of six months which has been granted to the tenants-respondents to vacate they are required to pay Rs. 3,000/- (at the rate of Rs. 500/- per month) as damages for use and occupation. This amount shall also be deposited within one month before the Prescribed Authority and shall immediately be paid to the landlord-petitioner.
8. In case of default in compliance with either of these conditions tenants shall be evicted after one month through process of Court.
9. It is further directed that in case undertaking is not filed or Rs. 3,000/- are not deposited within one month then tenants respondents shall be liable to pay damages at the rate of Rs. 2,000/- per month since after one month till the date of actual vacation.
10. Similarly if after filing the aforesaid undertaking and depositing Rs. 3,000/- the shop in dispute is not vacated after six months then damages for use and occupation shall be payable at the rate of Rs. 2,000/- per month since after six months till actual vacation.