JUDGMENT S. U. Khan, J,
1. This writ petition has been filed by tenant Mangroo Ram since deceased and survived by legal representatives and arises out of eviction/release proceedings initiated by landlady respondent No. 2 Smt. Lakshman Devi since deceased and survived by her son Govind Jaiswal on the ground of bona fide need under Section 21 of U.P. Act No. 13 of 1972. The release application was registered as Misc. Case No. 4 of 1982 on the file of Prescribed authority/Munsif, Mirzapur. prescribed authority rejected the release application on 25.8.1984. Against the said order landlady filed Rent Misc. Appeal No. 5 of 1984 before District Judge, Mirzapur. The learned District Judge allowed the appeal, set aside the judgment and order of the prescribed authority and allowed the release application through judgment and order dated 17.10.1985, hence this writ petition.
2. Property in dispute is a shop. It was stated in the release application that landlady appellant had one son aged about 11 years (who has now been substituted at the place of landlady respondent No. 2) and that out of five daughters of the landlady four had been married and the fifth one was suffering from Polio and was 14 years old at the time of filing of release application. It was stated by landlady that she was earning her livelihood by cleaning and washing utensils in the houses of others. In the face of these facts, if found to be proved, no court should reject the release application. It was also stated by the landlady that she was suffering from depression and doctor had advised her not to do any strenuous work. She stated that she proposed to carry on the business of selling sundry items from the shop in dispute with the help of her son. It was also stated that husband of the landlady till his death which occurred in 1973 was carrying on the business in the shop in dispute, however, after his death the shop was let out to the tenant petitioner. The fact that landlady was earning through cleaning utensils was not denied. The prescribed authority held that due to high blood pressure it would be more difficult for the landlady to sit at the shop than to clean utensils at the houses of others. This approach is ludicrous nay ridiculous. The prescribed authority further held that if landlady was in a position to start the business from the shop in dispute then she would not have let that out after the death of her husband. This approach is also utterly illegal. Landlady had also pleaded that she had become patient of high blood pressure which was additional reason for starting business. Moreover in the year 1973 when husband of landlady died, her son was only two years of age, hence it was not possible to take his assistance in running the shop. In the year 1982 when release application was filed the son had become 11 years of age, hence he could assist his mother in running the shop.
3. It has been held by Supreme Court in G.C. Kapoor v. A.D.J., AIR 2002 SC 200, that it is not necessary for the landlord to show that he has got sufficient means to start the proposed business in the release matters on the ground of bona fide need. Moreover business of selling sundry items on the small scale may be started by small funds also.
4. The least which can be said regarding the approach of the prescribed authority is that he did not understand even the basic meaning of bona fide need and comparative hardship. The prescribed authority was labouring under the misconception that unless the need of the landlady is so acute that she cannot survive unless shop in dispute is released, it cannot be said to be bona fide.
5. As far as comparative hardship is concerned, tenant did not show that he made any efforts to search for alternative shop after filing of the release application. In view of the Supreme Court authority in B.C. Bhutada v. G.R. Mundada, , this itself was sufficient to tilt the balance of comparative hardship in favour of the landlord.
6. Arguments in this petition were heard and judgment was reserved on 26.4.2005. An application for further hearing dated 4.5.2005 on behalf of tenant petitioner was filed. On 16.5.2005 learned Counsel for both the parties were again heard and judgment was again reserved.
7. It may be mentioned that maintainability of such an application is doubtful after judgment has been reserved in view of Supreme Court authority in Arjun Singh v. M. Kumar, . In the affidavit of son of the petitioner filed along with application dated 4.5.2005 it was stated in para 2 that, "there were relevant subsequent development which cannot be drawn to the notice of the Hon'ble court". However in the affidavit which contains two paragraphs absolutely no reference has been made to any subsequent development. In the release application the landlady had asserted that she would run the shop with the help of her son. The need set up was also for the son who is now landlord and substituted at the place of initial landlady respondent No. 2.
8. Accordingly there is absolutely no merit in the writ petition, hence it is dismissed with Rs. 2,000 cost.
9. Tenant petitioner is granted six months time to vacate provided that within one month from today he files an undertaking before the prescribed authority to the effect that on or before expiry of six months he will willingly vacate and handover possession of the shop in dispute to the landlord respondent No. 2. For this period of six months tenant petitioner shall deposit Rs. 3,000 before prescribed authority as damages for use and occupation. The cost and damages shall be deposited within one month from today failing which tenant shall be evicted immediately after one month through process of Court. The aforesaid amount, if deposited, shall at once be paid to the landlord.