Heard counsel for the petitioner and perused the record.
Landlord -Abdul Salam, respondent in this petition, filed an application under section 21(1)(a) of U.P. Act No. 13 of 1972 for release of a portion of house no. 101/67, Colonelganj, Kanpur, at the ground floor consisting of one room, common latrine and bathroom, inter alia on the ground that his family consists of nine members and they are living in a portion comprising of one room, one very small room, varandah, kothari on the first floor and one temporary tinshed on second floor; that his sons are doing work of sewing belts and embroidery on the ground floor which is the only source of their livelihood; that his children have grown up and their marriage is due but the accommodation with the landlord is too inadequate and insufficient for residential purpose to accommodate his entire family and that he or any member of his family does not own or possess any other house.
The aforesaid release application was registered as Rent Case No. 5 of 006, Abdul Salam Vs. Mohd. Sharif, in the court of Additional Civil Judge (S.D.), court no. 2/Prescribed Authority, Kanpur Nagar.
The petitioner tenant did not contest the case before the trial court. However, inspite of noting the fact that landlord had bonafide need of the accommodation in dispute, the trial court rejected the release application vide order dated 6.4.2008 on a hyper technical ground that landlord had not stated that his hardships were comparatively more than the tenant.
Aggrieved by the judgment and order dated 6.4.2008, the landlord filed Rent Appeal No. 123 of 2008, Abdul Salam Vs. Mohd. Sharif, in the court of District Judge, Kanpur Nagar. Summons were issued to the tenant petitioner by registered post AD at the correct address but the same returned with postal remark that tenant was not available. The lower appellate court therefore deemed the service to be sufficient by its order dated 17.3.2009 in view of ratio laid down in AIR 1989 S.L. 630..
After summoning original record, the lower appellate court by its judgment and order dated 24.2.2010 allowed the rent appeal of the landlord holding that the trial court had accepted bonafide need of the landlord but has committed an illegality in holding that the landlord has not stated that his comparative hardships were greater than the tenant.
It appears that counsel for the landlord had argued before the lower appellate court was that since the tenant had not appeared before the trial court as well as appellate court, there can be no standard for comparing hardships and it was sufficient that plea of bonafide need of the landlord was found to exist by the court below. According to the landlord, the question of comparative hardships would have been relevant had the tenant appeared before the court below and that plea of bonafide need and hardships was sufficient in the facts and circumstances of the case. He relied upon the following decisions in support of his above contention, Subha Rao and others Vs. VIIth Additional District Judge, Deoria and others ( 1993(1) A.R.C. Page - 362 ), Dayalunmal Vs. Third Additional District Judge, Pratapgarh and others ( 1989(2) A.R.C.-51), Mukesh Kumar Jain Vs. Laxmi Narain Gupta and others ( 2009(1) A.R.C.-794) and Haider Ali Vs. Ixth Additional District Judge, Lucknow ( 2009(3) A.R.C.-755, wherein it has bee held that where the tenant does not appear, it is not possible to compare the hardships and bonafide need of the landlord is sufficient to determine need of the accommodation.
It may also be noted here that in Haider Ali's case (supra), this Court has laid down that if the point of comparative hardships is not taken by the landlord due to inadvertent mistake of his counsel, the landlord should not be punished for it. In my opinion plea of bonafide need encompasses the question of "hardship" and the court can evaluate comparative hardship between the landlord and the tenant only in cases where they both are before the court with their circumstances for comparing the hardships and where only one party appears before the court, the case is ought not to be rejected on hyper technicality as in the present case.
After decision in the appeal, notices were issued to the petitioner by the court of Additional Chief Metropolitan Magistrate V, Kanpur Nagar in R.C. Misc. No. 10/23/2010 for appearance fixing 17.8.2010. According to contention of counsel for the petitioner, Parwana for Dakhal has already been issued and that petitioner tenant has filed an application for recall of the lower appellate court order.
Since the petitioner tenant has not appeared before the courts below, it appears that present writ petition has been filed with a view to delay execution proceedings.
In view of the fact that recall application filed by the petitioner is pending before the lower appellate court, this Court is not inclined to interfere with the matter. The petitioner may persue his remedy before the lower appellate court and if so advised, may file an application for expeditious hearing of the recall application.
The writ petition is accordingly dismissed. No order as to costs.
Dt/-15.9.2010 SNT/