JUDGMENT Anjani Kumar, J.
1. By means of the present writ petition under Article 226 of the Constitution of India, petitioner-tenant has challenged the orders dated 18.3.1993 and 8.11.1993. passed by the appellate authority as well as the prescribed authority under U. P. Act No. 13 of 1972.
2. The facts leading to the filing of the present writ petition are that the respondent No. 3-landlord filed an application initially in the year 1984 under Section 21 (1) (a) of U. P. Act No. 13 of 1972 (hereinafter shall be referred to as the 'Act'), against the petitioner-tenant for release of the accommodation, which is non-residential accommodation, on the ground that his elder son Prakash is unemployed and he wants to engage him in business. This application has been rejected by the Prescribed Authority, vide its order dated 4.11.1985 on the ground that the landlord has concealed one accommodation, which is in his possession, where he could have set up his sons, if at all he requires the accommodation in question bona fide. This order of the prescribed authority was affirmed by the appellate authority vide its order dated 10,3.1986.
3. The present application under Section 21 (1) (a) of the Act out of which this writ petition arises, was filed in the year 1990, which was registered as Case No. 41 of 1990, on the ground that the landlord wants to set up his younger son who was 15 years of age at the time when the earlier application was rejected by the prescribed authority in the year 1985. The petitioner-tenant contested the application, inter alia, on the ground that the need is not bona fide and the tilt of the comparative hardship is in favour of the petitioner-tenant and has also raised an objection on the maintainability of the second application filed in the year 1990 that in the earlier application with regard to the need of the another son in the year 1985, it was found by the prescribed authority as well as by the appellate authority that the need set up by the landlord is not bona fide when the need of elder son was set up on the very ground that he is unemployed and landlord wants to set up him in new business. The landlord contested the aforesaid plea that this application is not based on the same and similar facts. After the rejection of first application in the year 1985. the circumstances have changed, his son Narendra. who was only 15 years of age at that time, has now grown up and also has been married and has children, therefore, the requirement is bona fide and the second application cannot be said to be barred by principle of res judicata as is alleged by the petitioner-tenant. The prescribed authority, after relying upon decision of this Court, has held that the present application, which has been filed in the year 1990 cannot be said to be barred by principle of res judicata or analogues principles as the need is different and the circumstances have changed and thus there is no bar under Statute that another application cannot be filed. The prescribed authority after considering the case of the respective landlord and the tenant arrived at the conclusion that the need of the landlord is bona fide and more pressing than that of the petitioner-tenant. The prescribed authority also found that tilt of the comparative hardship is in favour of the landlord. He, therefore, allowed the present application filed by the landlord and directed to release of the accommodation in question in exercise of its powers under Section 21(1) (a) of U. P. Act No. 13 of 1972.
4. Aggrieved thereby the petitioner-tenant filed an appeal under Section 22 of the Act before the appellate authority. Before the appellate authority, same arguments were advanced and the appellate authority also found that the present application filed in the year 1990 cannot be said to be barred by principle of res judicata. With regard to the findings of bona fide need and the comparison of hardship, the appellate authority affirmed the findings recorded by the prescribed authority and the appeal filed by the petitioner-tenant therefore was dismissed. Thus, the present writ petition.
5. Before this Court also, the same arguments were advanced as were advanced before the prescribed authority as well as the appellate authority. Learned counsel for the contesting respondent-landlord has relied upon decision of this Court in Dr. Sita Ram Gandhi v. IVth Additional District Judge, Meerut and Anr.. 1983 ARC 782, where this Court has laid down that "the use of the expression 'bona fide" is indicative of the Legislative intent that the requirement should be common or with good faith, honesty, truly or actually. The contention that the proceedings of Sections 16 and 21 being different, the meaning to be assigned to this expression used in the two sections should also be different does not appear to be correct, The same word may mean one thing in one context and another in different but here the context of Sections 16 and 21 is necessarily the same, i.e., the requirement of the land to get his premises released. Mere assertion on the part of the landlord that he requires Additional Accommodation in occupation of the tenant is not sufficient. It is for the Court to determine the truth of the assertion and also whether it is bona fide. The test is objective and not subjective."
6. With regard to the principles of res Judicata. this Court held in paragraphs 11. 12 and 13, which is reproduced below :
"11. In a case where no new facts have come into existence and there have been no intervening change of circumstances the second application may not be entertainable on the principles of res judicata but where the landlord establishes a change of circumstances since the first application, the said case would require the Court trying the second application to reinvestlgate not only the question of bona fide requirement but also of greater hardship and to find on the basis of intervening changed circumstances as to whether the landlord is entitled to a release to be made in his favour under Section 21 of U. P. Act No. 13 of 1972.
12. The test is whether the second proceeding involves a new cause of action or whether it is merely an attempt to reiterate the same facts and to get a judgment in his favour on the same old cause of action. Whether or not matter of res judicata must depend solely upon whether the issue to be decided by the Court has already been litigated and decided between the parties. If the circumstances had changed it could not be contended that the issue between the parties remains the same. It is quite clear that a Court can upon fresh evidence alter. vary the judgment previously made if the cause of action of this subsequent proceeding is different than it was in the former, but, of course, if there is no evidence of any fresh circumstances, the second application may be barred by principles of res judicata.
13. It may be worthy of being noted that the question of greater hardship which is required to be decided under the proviso is also one which can change with the lapse of time. Every sort or circumstance may rise to change relevant facts on which the issue of greater hardship falls to be decided. In deciding the question of greater hardship the Court must bear in mind that the change of circumstance may occur from day to day and a Court will consider changed circumstances while deciding the second application for release made by the landlord. A trivial or insignificant change will not oust the applicability of the principle of res Judicata. Each case will have to be decided on its own facts for finding out as to whether the change is of a nature.
which has altered the position of the parties. If the answer is in the affirmative the principles of res judicata would not be applicable."
7. The another decision relied upon by the learned counsel for the respondent-landlord is in Smt. Ram Kumari and others v. Additional District Judge and Ors., 1985 (2) ARC 134, wherein the earlier decision in the case of Dr. Sita Ram Gandhi, 1983 ARC 782. was relied upon by learned single Judge of this Court. The learned single Judge has held that "the question of need and comparative hardship can be re-agitated in an application given more than six months after the dismissal of the earlier application under Section 21 (1) (a) of the Act. However, if the earlier application and an alleged private partition of 1973 between the co-owners of the building had been found to be sham, then the said finding should operate as res judicala. Although Section 11 C.P.C. does not apply, in terms, to proceedings under U. P. Act No. XIII of 1972." But here in the present case, in the earlier application, the need set up was for his elder son, whereas in the present application the need set up is for the younger son. The prescribed authority as well as the appellate authorily has found that no other accommodation has been either brought on the record, or in the notice of the Court that there is any other accommodation in which younger son can set up and start his business, which was the basis of rejection of the earlier application filed by the landlord in the year 1985, Apart from above, the prescribed authority as well as the appellate authority has also considered the subsequent circumstances, which came into existence after the dismissal of the earlier application filed in the year 1985. Considering the aforesaid facts, the prescribed authority as well as the appellate authority, in my opinion, have not committed any error in holding that the second application filed in the year 1990 cannot be said to have been barred by the principles of res judicata. After holding that the present application filed in the year 1990. out of which the present writ petition arises, cannot be said to be barred by principles of res judicata. this Court in exercise of its powers under Article 226 of the Constitution of India will not interfere with the concurrent findings of fact recorded by the prescribed authority and affirmed by the appellate authority. No other point has been pressed before me by learned counsel for the petitioner-tenant to demonstrate that either the findings recorded by the prescribed authority and affirmed by the appellate authority suffer from the manifest error of law, or perverse. In this view of the matter, this Court will not interfere with the concurrent findings recorded by the prescribed authority and affirmed by the appellate authority with regard to the bona fide requirement of the landlord and also with regard to comparison of hardship.
8. This being the legal and factual position, the orders impugned in the present writ petition do not warrant any interference by this Court in exercise of its powers under Article 226 of the Constitution of India.
9. This writ petition, therefore, deserves to be dismissed and is hereby dismissed. The interim order, if any, stands vacated. However, in the facts and circumstances of the case, the parties shall bear their own costs.