JUDGMENT S.U. Khan, J.
1. This is tenant's writ petition arising out of eviction/release proceedings initiated by landlady-respondent against him on the ground of bona fide need under Section 21 of U.P. Act No. 13 of 1972 in the form of P.A. Case No. 60 of 1997. Property in dispute is a shop which was purchased by landlady's father-in-law in her name on 17.12.1991. Petitioner is tenant of the said shop since before its purchase by landlady-respondent. Rent of the shop in dispute is Rs. 93.43 P. Landlady in her release application asserted that the shop was required for her husband Jagmohan Singh. It was further stated that previously Jagmohan Singh was doing business along with his father and brothers in the shop of his father, however, after the death of Asha Singh, her father-in-law on 30.4.1992, there was dispute among brothers and Jagmohan was separated from the shop in dispute.
2. Prescribed authority through judgment and order dated 10.9.1999 dismissed the release application. Prescribed Authority held that the alleged notice of six months as required by first proviso to Section 21 was not served upon the tenant. Prescribed Authority also held that need was not bonaflde, as husband of landlady was doing business in another shop, which initially belonged to his father and he had inherited the same after the death of his father. Against the judgment and order of the Prescribed Authority landlady-respondent filed Appeal No. 22 of 1994. Additional District Judge, F.T.C. III, Saharanpur through judgment and order dated 6.12.2004 allowed the appeal, set aside the judgment and order passed by the Prescribed Authority and allowed the release application of the landlady. However, tenant was awarded damages equivalent to two years rent. This writ petition by the tenant is directed against the aforesaid judgment of the appellate court.
3. As far as the notice under first proviso to Section 21 of the Act is concerned, appellate court found that such notice was served upon the tenant. Appellate court further held that release application was filed after more than 5 years from purchasing the property, hence notice was not necessary. The last finding is perfectly in consonance with the judgment of the Supreme Court in Anwarul Hasan Khan v. Mohd. Shafi and Ors. .
4. Before the Prescribed Authority landlady had filed affidavit stating therein that after the death of her father-in-law on 30.4.1992, all his five sons partitioned the three shops which they inherited from their father among themselves in such manner that the shop on which her husband was doing business fell in the share of his elder brother Charan Jeet Singh. It was further stated that the shop in dispute had been purchased by Asha Singh, father-in-law of the landlady in her name for establishing his son Jagmohan Singh in business. It was further stated that another shop had also been purchased by late Asha Singh in the name of his 5th son Amarjeet Singh. Landlady further pleaded that late Asha Singh had five sons and three shops and as he wanted to settle all his sons in separate business, hence he purchased two shops-one in the name of Amarjeet Singh and other in her name so that all the sons of Asha Singh could do independent separate business from different shops. During pendency of appeal, release application was also got amended and these pleas were inserted in the release application also. It was further stated in the affidavit of landlady before the Prescribed Authority as well as indicated in the release application through amendment at the appellate stage that after the death of Asha Singh, his five sons had divided the properties in such a manner that Charan Jeet Singh got the shop from where husband the landlady Jagmohan Singh was doing business in the name of Raj Traders, Pritpal Singh the 3rd son of Asha Singh was given the shop in which he was since the time of his father doing the business by the name of Messrs Asha Singh and others. Jagmohan (husband of the landlady) and Amarjeet Singh 2nd and 5th sons of Asha Singh were not given any share in the three shops which all the brothers had inherited from their father for the reason that their father had purchased one shop in the name of Amarjeet Singh and another shop for Jagmohan Singh in the name of his wife, i.e., Landlady. The partition was also made part of a decree of a suit filed during the pendency of the release proceedings, i.e., O.S. No. 414 of 1999.
5. Learned Counsel for the tenant has very vehemently argued that Jagmohan Singh, husband of the landlady was doing business in a shop belonging to his father in the name of Guru Govind Singh Kerana Store since life time of his father and it was most unnatural to provide in the partition that the said shop would be given to other brother Charan Jeet Singh and Jagmohan and his family would be maintained by Charan Jeet Singh. Elaborating his arguments further the learned Counsel for the tenant-petitioner has argued that due to this flaw it becomes quite apparent that the said partition was entered into only for creating a ground for release of the shop in dispute.
6. In my opinion, even if partition is altogether ignored, the need for Jagmohan, husband of the landlady cannot be said to be not bona fide. It is not disputed that the shop premises in which Jagmohan was doing business belonged to his father Asha Singh. If a person dies leaving behind 5 sons-and three shops, and two sons have got their own shops, then it is quite reasonable and natural that the two sons who have got their own shops agree to leave the three inherited shops for those three sons who do not own any shop. Husband of the landlady belongs to the business family doing retail business. His father Asha Singh left behind five sons and all of them required separate shops for doing separate business. It has been held by the Supreme Court in Shushila v. A.D.J. and A. Kumar v. Mustaquim , that every male adult member of landlord's family is entitled to do independent separate business and no one can be compelled to participate in the business carried out by other family members. For the five sons of Asha Singh only 5 shops are available, hence each son is entitled to do independent business. As such all of them are entitled to one shop each.
7. Accordingly I do not find any error in the finding of bona fide need recorded by the appellate court.
8. In respect of comparative hardship, appellate court held that tenant did not make any effort to search alternative accommodation after filing of the release application, hence question of comparative hardship had to be decided against him. This finding is perfectly in consonance with the view of the Supreme Court expressed in B.C. Bhutada v. G.R. Mundada .
9. For the above reasons I do not find any error in the findings recorded by the lower appellate court.
10. Writ petition is accordingly dismissed.
11. Tenant petitioner is granted six months time to vacate provided that:
(i) 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 accommodation in dispute to the landlady-respondent.
(ii) For this period of six months which has been granted to the tenant to vacate he is 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 landlady-respondent.
12. In case of default in compliance with either of these conditions, tenant-petitioner shall be evicted after one month through process of Court.
13. It is further directed that in case undertaking is not filed or Rs. 3,000 are not deposited within one month then tenant-petitioner shall be liable to pay damages at the rate of Rs. 1,500 per month since after one month till the date of actual vacation.
14. Similarly, if after filing the aforesaid undertaking and depositing Rs. 3,000 the accommodation in dispute is not vacated after six months then damages for use and occupation shall be payable at the rate of Rs. 1,500 per month since after six months till actual vacation.