JUDGMENT Anjani Kumar, J.
1. By means of present writ petition under Article 226 of the Constitution of India, the petitioner-tenant challenges the order dated 31st May, 2003, passed by the prescribed authority and the order dated 29th October, 2004, passed by the appellate authority under the provisions of the U.P. Act No. XIII of 1972, copies whereof are annexed as Annexure Nos. 'XI' and 'XII', respectively, to the writ petition.
2. The brief facts of the present case are that the petitioner is the tenant of the accommodation in question, which is a shop from where he is carrying on his business. The aforesaid shop was let out to the tenant-petitioner in the year 1982. The landlord-respondent filed an application under Section 21 (1) (a) of the U.P. Act No. XIII of 1972, (In short 'the Act'), for the release of the accommodation in question in favour of the landlord on the ground that the landlord requires the aforesaid shop in question to settle his two sons, namely, Manish Kumar, who did his M.Sc. And Rajnish Kumar, who did B.Com. and his both sons are un-employed and they want to start the business of electronic goods from the shop in question. The tenant-petitioner filed an objection to the aforesaid release application and disputed that the landlord bona fide requires the shop in question to settle down his sons. It is submitted by the petitioner in his objection that in fact the landlord is carrying on his business from shop No. 233/1, which is different shop than the shop in question and his both sons are engaged by assisting the landlord in the business of landlord. It is further stated by the tenant-petitioner that there is another shop of the landlord being 233/3 wherein tenant, namely, Ram Bachan Seth is carrying on business and against him the landlord also filed application under Section 21 (1) (a) of the Act. The similar application has been filed by the landlord with regard to the other tenants, namely, tenant of shop Nos. 233/4, 233/5 and 233/6 for release of the shops occupied by the tenants of the aforesaid shop nos, same are pending. The landlord-respondent also filed evidence to the effect that the petitioner and his father is carrying on business, wherein his father was looking after the business, therefore if the shop in question is released in favour of the landlord, the tenant-petitioner will not suffer any loss, he can comfortably shift the business to the shop, which at present is run by his father.
3. On the basis of the pleadings and evidence adduced by the parties, the prescribed authority found that the need of the landlord for settling down his sons is bona fide need. The prescribed authority also arrived at the conclusion that since the father of the petitioner-tenant owns several shops, which are vacant as such the tenant will have no difficulty in shifting to any of the shops owned by his father which, is still vacant. Thus, the prescribed authority vide its order dated 31st May, 2003 allowed the release application filed by the landlord and directed for release of the accommodation in question in favour of the landlord.
4. Aggrieved thereby, the petitioner-tenant preferred an appeal under Section 22 of the Act before the appellate Authority. Before the appellate authority, the petitioner-tenant stated that out of the two sons, one son Rajnish Kumar is engaged in the business of medicine and he has got a wholesale licence of medicine and as such the need for Rajnish Kumar even if it was in existence at the time of filing of the release application, is now no more in existence. So far as Manish Kumar, the other son of the landlord is concerned, the evidence before the appellate authority was that he was doing money lending business under licence No. 564 and this business of money lending was carried on in the name and style of Gupta Brother and Kusum Gupta & Co. The landlord is reply to the aforesaid evidence stated that Manish Kumar had been doing money lending business from the residential house No. 53 and he had a licence No. 564, but Manish Kumar surrendered the aforesaid licence of money lending in order to start new business before filing of the present release application for release of the accommodation in question by the landlord.
5. Learned Counsel appearing on behalf of the petitioner-tenant argued that from what has been stated above, the need of the landlord cannot be said to be bona fide, inasmuch as both the sons were engaged in the business and in fact it was mere desire of the landlord. In support of his contention, he relied upon a decision reported in 2007 Supreme Court & Full Bench Rent Cases, 317 : (2001) 5 SCC, 705 Deena Nath v. Pooran Mal. The other decision relied upon by learned Counsel for the petitioner-tenant is reported in (2004) 8 Supreme Court Cases, 76 : 2004 (2) ARC 764 Kedar Nath Agrawal (dead) and Anr. v. Dhanraji Devi (dead) by Lrs. and Anr., wherein the Apex Court has ruled that "the subsequent facts should be looked into by the Court in arriving at the conclusion as to whether the accommodation is bona fide required and further whether the tilt of the comparative hardship is in favour of the landlord or not." The Apex Court ruled as under:-
"27. In Om Prakash Gupta v. Ranbir B. Goyal, this Court stated : (SCC pp. 262-63, Para 11) "11. The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied : (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the Court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise."
6. The Apex Court relying upon the decision reported in (2001) 2 SCC, 604 : AIR 2001 SC, 803 : 2001 (1) ARC 352, Gaya Prasad v. Pradeep Srivastava, has held, which is reproduced below:-
"10. We have no doubt that the crucial date for deciding as to the bona fides of the requirement of the landlord is the date of his application for eviction. The antecedent days perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the post-petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative show-process system subsists. During 23 years, after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to erase the patina and see the gloss. It is pernicious, and we may say, unjust to shut the door before an applicant just on the eve of his reaching the finale, after passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period."
7. That fact that during the pendency of the litigation, one of the sons of the landlord got engaged in the business of medicine and Anr. son is still to settle down in new business has been taken into by the appellate Authority. Much emphasis has been laid down by learned Counsel appearing on behalf of the petitioner-tenant that Manish Kumar was carrying on the business of money lending, which he has stopped by surrendering the licence and now assisting his father in his business, which he runs from shop No. 233/1, therefore, the need of the landlord even for Manish Kumar cannot be said to be bona fide. Learned Counsel appearing on behalf of the respondent-landlord relied upon a decision of this Court reported in 1984 (1) ARC, 113 N.S. Dutta and Ors. v. The VIIth Addl. District Judge, Allahabad and Ors., particularly Paragraph 14, which is reproduced below:-
"............................In believing these affidavits, the authorities below cannot be said to have erred in law or to have indulged in perversity. Even if it were assumed for the sake of arguments that Harsh Tandon assists the father in that business such a stop gap arrangement in the absence of his being able immediately to start the Hotel is entirely of no consequence. The petitions do not dispute that the respondent has the requisite financial capacity to make heavy investment for running a Hotel. It was stated that the respondent or his son have had no previous experience but that does not prevent making a beginning with a new venture."
8. In this view of the matter, since the appellate Authority has already recorded a finding that Manish Kumar has surrendered the licence before filing of the present release application, the view taken by the prescribed Authority and affirmed by the appellate authority that the need of the landlord at least for Manish Kumar is bona fide. On the question of comparative hardship, it is stated as would be clear from the affidavits filed before the Courts below as well as before this Court that the landlord has recently taken a shop in which he is carrying on business in the name and style of Urvashi General Store and Gift Centre, apart from that the father of the petitioner-tenant has built up several shops in Ganga Katra, which after demolishing converted into one room with the prescribed authority allowed the release application against the petitioner-tenant. However, it is not disputed that the said newly constructed Ganga Katra is still available for the petitioner-tenant to shift. Learned Counsel for the respondent-landlord further relying upon a decision reported in 2004 (1) ARC, 148 Sanjay Kumar and Ors. v. Subodh Kumar and Ors., has submitted that the appellate authority has considered each and every aspect of the matter, including the so called subsequent events and thereafter affirmed the order passed by the prescribed authority with regard to bona fide need as well as comparative hardship. It is also suggested by leaned Counsel for the respondent-landlord that since the tenant has made no effort to find out any alternative accommodation, coupled with the fact that the tenant has already occupied the shop in which he is carrying on his business and the father of the tenant has built up a new construction in the name and style of Ganga Katra, completely demonstrates that the tilt of the comparative hardship is in favour of the landlord, as found by the prescribed authority and affirmed by the appellate authority. On this aspect of the matter, I am in full agreement with learned Counsel for the respondent-landlord and in view of the law laid down by the Apex Court reported in 2004 (2) AWC, 1721 (SC) : 2004 (1) ARC 613, Ranjeet Singh v. Ravi Prakash, it is settled that this Court will not sit in appeal over the findings arrived by the subordinate authorities and re-appraise the evidence. The aforesaid view finds support of the decision of the Apex Court reported in (2003) 6 Supreme Court Cases, 675 : AIR 2003 Supreme Court, 3044 : 2003 (2) ARC 385, Surya Dev Rai v. Ram Chander Rai and Ors..
9. In view of the what has been stated above, I do not find any ground for interference with the orders impugned in the present writ petition. This writ petition therefore, has no force and is accordingly dismissed.
10. Lastly, it is submitted by learned Counsel appearing on behalf of the petitioner-tenant that since the petitioner-tenant is carrying on business from the shop in question, therefore, he may be granted some time to vacate and handover the accommodation in question to the landlord. Considering the facts and circumstances of the case and also in the interest of justice, I direct that the eviction order against the petitioner-tenant shall not executed till 31st August, 2005, provided:
(i) the petitioner-tenant shall furnish an undertaking before the prescribed authority within a period of one month from today to the effect that he will pay the entire rent/damages at the rate of rent, till date, if he has not paid the same, to the landlord within the same period of one month from today; and
(ii) the petitioner-tenant keeps on paying the rent month by month by first week of succeeding month, so long he remain in possession or till 31st August, 2005, whichever is earlier and further he will vacate and handover the peaceful possession of the accommodation in question to the landlord on or before 31st August, 2005; or
(iii) in the event of default of any of the conditions mentioned above, it will be open to the respondent-landlord to get the order or release executed in accordance with law.
With the aforesaid observation, this writ petition is dismissed. The interim order, if any, stands vacated. However, the parties shall bear their own costs.