JUDGMENT S.U. Khan, J.
1. This writ petition on behalf of three tenants was dismissed for non-prosecution on 23.4.2004 as no one appeared for the petitioners. Restoration application was filed on 18.8.2004. Cause shown in the restoration application is sufficient. Restoration application is allowed. Order dated 23.4.2004 dismissing the writ petition for non-prosecution is set aside. Learned Counsel for both the parties have been heard on merit of the petition.
2. It is undisputed that after dismissal of the writ petition for non-prosecution on 23.4.2004 landlord took possession of the property in dispute in August, 2004,
3. Writ Petition arises out of eviction/release proceedings initiated by landlord-respondent No. 2, Surendra Kumar Garg (S.K. Garg in short) on the ground of bonafide need under Section 21 of U.P. Act No. 13 of 1972. Release application was registered as P.A. Case No. 43 of 1991 on the file of Prescribed Authority/Civil Judge, Saharanpur. Release application was filed against four tenants i.e. the three petitioners and one Vinod Kumar. In the release application it was stated that the property in dispute which was in the form of four shops alongwith other properties was Joint Hindu Family property of landlord and his brothers, that the members of the Joint Family orally partitioned the joint property amongst themselves and later on a memorandum of partition was also prepared. Thereafter a suit for partition was filed and on the basis of oral partition and memorandum of partition the suit was decreed through compromise. It was further pleaded in the release application that in the partition the four shops alongwith another ad-joining shop and some open portion on the back of the said shops fell in the share of the applicant S.K. Garg who did not get any residential house in partition hence he required the property in dispute for residential purposes and the shop in possession of fourth tenant Vinod Kumar for establishing his son in business. It was also stated that meanwhile landlord was residing on rent of Rs. 650/- per month in another house situate in Mohalla Janak Nagar. The landlord of that house also filed an affidavit to the effect that respondent No. 2 Surendra Kumar Garg was residing as tenant in his house. After partition, intimation thereof was given by respondent No. 2 to all the tenants and they started paying rent to respondent No. 2. The tenancies of the tenants-petitioners started in early 70s during the lifetime of mother of respondent No. 2.
4. The main defence of the tenants was that partition was collusive and brought into existence only for creating ground of eviction. It was stated by the tenants that in-case respondent No. 2 was really in need of residential accommodation then he would have insisted on getting residential accommodation in partition. This fact has been found as proved by both the Courts below that landlord was residing in a tenanted house. Petitioners rather admitted this fact. However, they asserted that it was done only to create a ground for eviction. The Prescribed Authority rejected the release application mainly on the ground that compromise was not bonafide. The Prescribed Authority rejected the release application through judgment and order dated 19.10.1992 against which landlord-respondent No. 2 filed an appeal under Section 22 of the Act being rent control appeal No. 267 of 1991. IV A.D.J. Saharanpur through judgment and order dated 8.4.1994 allowed the appeal, set aside the judgment and order passed by Prescribed Authority and allowed the release application of the landlord hence this writ petition by tenants.
5. The lower Appellate Court rightly held that the family partition was genuine and that after coming to know about the family partition tenants started paying rent to respondent No. 2, hence they could not question the genuineness of the compromise. In any case the fact that landlord was himself residing in a tenanted accommodation clearly proved that he was in bonafide need of residential accommodation. Under Section 21 of the Act residential accommodation cannot be released for commercial purposes. However, there is no bar against releasing commercial accommodation for residential purpose. Regarding comparative hardship lower appellate Court found that tenants had not made any efforts to search for alternative accommodation. It has been held by the Supreme Court in Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada, A.I.R. 2003 S.C. 2713 : 2003 SCFBRC 167 that failure of the tenant to search alternative accommodation after filing of release application is sufficient to decide question of hardship against the tenant. It has been held by the Supreme Court in Siddalingama v. M. Shenoy A.I.R. 2001 S.C. 2896 : 2002 SCFBRC 17, that Rent Control Acts are basically meant for the benefit of the tenants and provision of release on the ground of bonafide need is the only provision, which treats the landlord with some sympathy.
6. In view of the above I do not find any error in the judgment and order passed by the lower Appellate Court. Additional written arguments have been filed by the petitioners bringing on record some photographs. There is no provision under which the photographs filed alongwith written arguments may be taken into consideration. In the additional written argument it was mentioned that landlord had built residential accommodation over the two shops, which were in his possession. Apart from this statement in the additional written arguments there is no material on record containing or proving the said assertion. Even the copy of the said additional written arguments was not provided to the learned Counsel for landlord-respondent No. 2.
7. When the arguments were heard in this writ petition on 23.9.2004, learned Counsel for both the parties were directed to make their offers for a possible compromise. Learned Counsel for the landlord stated that landlord was ready to pay five years rent as compensation in addition to two years' rent already awarded by the appellate Court. Learned Counsel for the tenants-petitioners stated that each of the tenants were ready to pay Rs. 1,000/- as monthly rent at the place of old rent of Rs. 100/- Rs. 110/- and Rs. 200/- which the three petitioners were paying respectively. However, both the parties could not agree on compromise.
8. Accordingly, while dismissing the writ petition it is directed that within two months from today landlord-respondent No. 2 must pay five years' rent to each of the tenant-petitioners (in addition to the compensation awarded by the lower Appellate Court) i.e. Rs. 6,000/- to petitioner No. 1, Rs. 6,600/-to petitioner No. 2 and Rs. 12,000/- to petitioner No. 3, respectively in order to enable them to arrange proper alternative shops.
9. Writ Petition is dismissed with the above observations.