JUDGMENT S.U. Khan, J.
1. This is landlord's writ petition arising out of eviction release proceedings initiated by Faiyaz Khan original landlord petitioner since deceased and survived by legal representatives against Dr. Aziz who died during pendency of the proceedings before prescribed authority and was substituted by respondent Nos. 3 to 13 in the form of cast; No. 102 of 1980. It was filed on the ground of bonafide need under Section 21 of U.P. Act No. 13 of 1972 before prescribed authority.
2. Release application was initially allowed on 29.1.1982 finding the need of the landlord to be bonafide and deciding the question of comparative hardship also in favour of the landlord. However the Said judgment was set-aside in part in appeal and the matter was remanded to the prescribed authority to decide the question of comparative hardship again. After remand prescribed authority/ Additional Civil Judge, Jhansi dismissed the release application on 31.10.1985, however in the said judgment also bonafide need of the landlord was found to be fully established. Release application was dismissed on two grounds; firstly it was held that Dr. Amin one of the substituted legal representatives of original tenant Dr. Aziz had inherited not only the tenancy but the practice of his father and in case he was ejected he would the patients of his father. The other ground taken by the prescribed authority for rejecting the release application was that the tenancy was continuing since the time of father of the applicant Faiyaz Khan and as his father had left behind other sons also (i.e. brothers of Faiyaz Khan) hence release application was not maintainable as the other landlords had not Signed the same in accordance with Rule 15(2) of the rules framed under the Act. This question is no more res integra. A full bench authority of this Court reported in Gopal Das v. A.D.J. 1987 (1) ARC 281 has held that even one of the landlords can file release application under Section 21 of the Act. Against the judgment and order dated 31.10.1985, landlord petitioner Faiyaz Khan filed R.C. Appeal No. 71 of 1985. II Additional District Judge, Jhansi dismissed the appeal through judgment and order dated 22.4.1989, hence this writ petition.
3. Appellant court also examined the question of bonafide need thoroughly and recorded independent finding to the effect that need the landlord faiyaz Khan to settle his son Sarfaraz Khan in business was quite bonafide (now Sarfaraz Khan is one of the petitioners substituted after the death of original petitioner Faiyaz Khan). All the courts at every stag held that Sarfaraz Khan was not doing any regular job and mere fact that he had a tempo did not satisiy his need. If for want of proper accommodation to start business landlord or any of his family members engages himself in temporary and casual jobs, it does not satisfy or substantially mitigate the need (Vide Ramkubai v. H.D. Chandak ).
4. In respect, of maintainability of release application by one of the co-owners, appellate court even though discussed the above authority of Gopal Das still it held that the release application was not maintainable. The finding is just contrary to the aforesaid authority of Gopal Das hence it is set-aside.
5. Appellate court also agreed with the trial court that balance of hardship lay in favour of the tenant particularly Dr. Amin as in Case of eviction he would be deprived of patients of his father. It was further held that his father had established a goodwill, which was inherited by his son Dr. Amin.
6. In respect of goodwill tenant can be compensated by awarding compensation not exceeding two years rent as provided under second proviso to Section 21(1) of the Act.
7. Goodwill is not much relevant for doctors. Patient comes to doctor on the basis of his ability and competency. In any case about a year or two had already passed since the time of death of original tenant when prescribed authority decided the release application. During this period Dr. Amin could have fully come into contact with the patients of his father hence there was no danger that by shifting his clinic lie would be lowing the patients of his father. Moreover in Para 7 of the written statement filed by Dr. Aziz, it was pleaded that for 10-12 years his son Dr. Am in was assisting him. All the patients of his father must already be knowing the caliber of Dr. Amin.
8. Concept of comparative hardship can not. be stretched to the extent of depriving the landlord of his property even if landlord is in real and imminent need. It has been brought, on record that in adjoining town Dr. Amin was having a clinic even though he asserted that he attended that, only off and on. In any case tenant did not show that he made any efforts to search alternative accommodation after filing of the release application. As held by the Supreme Court in B.C. Bhutada v. G.R. Mundada , this by itself was sufficient to tilt the balance of hardship inst the tenant.
9. Original tenant was also a doctor and his son Dr. Amin is also a doctor. Doctors usually earn good income. The huge financial and social disparity between the landlord and the tenant is writ large on face of the record. Landlord was a man of very limited financial means. His son had passed only Class VIII and was plying tempo he wanted to settle his son in business of retail sale. Tenant doctor who could very well arrange another accommodation still comparative hardship was decided in favour of the tenant by courts below. There could not be more illegal and unjust approach of the courts below. Appellate court has held that Dr. in case of eviction will be losing the "facility" (Suvidha) of patients of his father. At the other place appellate court also observed that it would be inconvenient for Dr. Amin to establish practice at a new place. On the one hand son of landlord was not having any settled business and on the other hand courts were quite concerned with convenience and facility of tenant. The fact that accommodation in dispute is quite big and rent is only Rs. 25/- per month also tilts the balance of hardship against the tenant. By paying highly inadequate rent tenant, must have saved lot of money. Money saved is money earned. It may also be noted that release application was filed in the year 1980, more than 25 years before.
10. Accordingly I find that the view of the courts below that balance of hardship lay in favour of the tenant is utterly erroneous in law.
11. Courts below superimposed the imaginary hardship on bonafide need in such a manner that it engulfed the bonafide need totally.
12. In the end, an important aspect of the matter brought on record through supplementary affidavit sworn on 23.5.2005 requires consideration. The said supplementary affidavit was filed along with application dated 23.5.2005, while earlier after hearing learned Counsel for the parties judgment had been reserved on 4.5.2005. On the said application, on 25.5.2005 I passed the order that in case while dictating judgment, if it was found necessary to hear the parties on the facts mentioned in the supplementary affidavit, case would be listed for rehearing. Thereafter on 27.5.2005, I directed the case to be listed for further hearing. Thereafter supplementary counter affidavit was filed on behalf of the landlord and supplementary rejoinder affidavit on behalf of the tenants. The matter was heard again on several dates including 30.11.2005 when judgment was reserved.
13. In the supplementary affidavit, it was stated that in the last week of April 2005 one of the tenants Dr. Amin came to know that there had been a partition in between Faiyaz Khan and his brothers in the year 1976 and the shop in dispute had fallen in the share of Salim one of the brothers of original applicant: petitioner. It was very conveniently omitted to be mentioned in the said supplementary affidavit that till the knowledge of the said fact in April 2005, to whom the tenants were paying rent (if rent was at all paid). A copy of partition deed dated 19.6.1976 has also been annexed with the said supplementary affidavit. In the supplementary counter affidavit filed on' behalf of Sarfaraz Khan one of the substituted petitioners, it was stated that Salim Khan after getting the shop in dispute in partition orally gifted the same to Faiyaz Khan as Faiyaz Khan had paid off the loan of Salim Khan. Along with the supplementary counter affidavit, affidavit of Salim Khan has also been filed who has also stated that Faiyaz Khan his brother had paid off his loan hence he gifted the shop in dispute to Faiyaz Khan in 1976 itself (just after partition). Moreover in Para 1 of the release application, it was stated that applicant i.e. Faiyaz Khan was landlord of the shop in dispute. In Para 5 of the written statement, it was stated that tenancy was continuing since the time of the Rahim Bux father of the applicant and Rahim Bux had died leaving behind four sons who were legally owners of the shop in dispute even though for some time applicant alone was realising the rent from the tenant.
14. If the stand taken by the tenant that it was not Faiyaz Khan but Salim Khan who was the landlord is accepted then tenant will be elevated to the status of owner of the property in dispute, as lie would be having no landlord. Salim Khan never claimed any right in the property in dispute and through his affidavit filed along with supplementary counter affidavit, he has positively disclaimed any right in the property in dispute. In this regard the following observation of the Supreme Court reported in AIR 1999 SC 1823, P.K. Gupta v. R. Nagdeo are quite apt: -
Para 2: The enviable position to which the tenant of a shop building has ensconced himself as corollary to the judgment of the High Court (under appeal now) is that he need not thenceforth be accountable to any landlord. On the one side when the claim of appellant to be the landlord has been discountenanced by the High Court, at the other side the person whom the tenant proclaimed as his landlord has disclaimed the credential. If the Judgment of the High Court remains in force the tenant stands elevated virtually to the status of owner of the suit building. But appellant is not prepared to concede defeat and hence he has come up with this appeal by special leave.
15. Accordingly, I find the version of the landlords petitioners to be correct.
16. In view of the above, writ petition is allowed. Judgments and orders passed by the courts below axe set-aside. Release application of the landlord is allowed.
17. Tenant- respondent is granted six months time to vacate provided that:
(1) Within one month from today he files an undertaking before the prescribed authority to the effect that on or before the expiry of period of six months he will willingly vacate and handover possession of-the property in dispute to the landlord-petitioner.
(2) For this period of six months, which has been granted to the respondent to vacate he is required to pay Rs. 6000/- (at the -rate of Rs. 1000/- 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.
18. It is further directed that in case undertaking is not filed or amount of Rs. 6000/- is not deposited within one month then tenant respondent shall be liable to pay damages at the rate of Rs. 2000/ per month since after one month till the date of actual
19. Similarly if after filing the aforesaid undertaking and depositing Rs. 6000/- the shop in dispute is not vacated on or before six months then damages for use and occupation shall be payable at the rate of Rs. 2000/- per month since after six months till actual vacation.