JUDGMENT S.U. Khan, J.
1. This is tenant's writ petition arising out of proceedings for eviction/release initiated by landlady-respondent against her on the ground of bona fide need under Section 21 of U.P. Rent Control Act, U.P.R.C. Act, in short (U.P. Act No. 13 of 1972). The accommodation in dispute consists of one shop and two residential rooms (or one big room divided by a wall into two portions) at the back of the shop on the ground floor. In between the shop and the rooms in which tenant's family is residing there is another room in tenancy of another tenant Ashok Sharma on behalf of landlady-respondent. On the ground floor there is some more accommodation which is/was in tenancy occupation of other tenants on behalf of the landlady-respondent. On first and second floor landlady resides with her family members. Annexure RA-1 to the rejoinder-affidavit is the map of the ground floor accommodation of the building including accommodation in dispute. During arguments it was asserted by learned Counsel for the tenant and not denied by the learned Counsel for the landlady that on first and second floor in the building there are 12 rooms in possession of the landlady. The release application was registered as Rent Case No. 24 of 1990, on the file of Prescribed Authority/ACMM v. Kanpur Nagar. In the release application, copy of which is Annexure-1 to the writ petition it was stated that landlady and her family members had a car and two scooters (or motorcycles) hence the shop in tenancy occupation of tenant was required for being used as garage as landlady was not having any accommodation on the ground floor and parking of the vehicles on the road was not safe and that passers by damaged the vehicle. It was further stated that the husband of the landlady met with a serious accident in March, 1988 in which both of his legs got multiple fractures and he remained confined to bed for several months as a result of which it was quite difficult for him to ascend and descend the stairs hence one room was required for his residence on the ground floor for which the residential room (or two rooms) in tenancy occupation of the tenant was quite suitable. In the release application it was specifically pleaded that:
"The need of the petitioner for additional accommodation on the ground floor for a room to her husband and a garage is most genuine, pressing and bona fide." (Para 7)
2. In the same paragraph it was also stated that petitioner and her family members were quite rich, assessed to income tax as well as wealth tax hence their status was quite high. It was also stated that landlady had renovated the first floor and second floor portions and had constructed a room on the third floor for satisfying her residential requirement. The Prescribed Authority found the need of the landlady for both the purposes bona fide. The Prescribed Authority in its judgment on Page 49 of the paper-book mentioned that the husband of the landlady had admitted in his affidavit the fact that in the Building No. 80/82 Latouche road he was having his office and the said premises was in his tenancy occupation while comparing the hardship the Prescribed Authority held that tenant could shift his shop anywhere else. Ultimately by order dated 21st September, 1995 release application was allowed by the Prescribed Authority. Against the judgment and order of the Prescribed Authority tenant-petitioner filed an appeal under Section 22 of the U.P.R.C. Act, being Rent Appeal No. 179 of 1995, A.D.J., Court No. XI, Kanpur Nagar through judgment and order dated 21st August, 2003 dismissed the appeal hence this writ petition.
3. The Appellate Authority directed the landlady to pay two years' rent (Rs. 27.50 x 24) to the tenant as compensation. In Paras 12 and 13 of the writ petition it has been stated that the portion of on the ground floor which was in tenancy occupation of one Smt. Sukhdai was released in favour of the landlady in release proceedings initiated by her against Sukhdai and on 16th January, 2003 landlady obtained possession of the said portion. In the map (Annexure-1 to the rejoinder-affidavit), the said portion is shown by red lines and is bigger than the shop in possession of the tenant-petitioner. Both the portions are situate on the same road. Dimensions of the shop in dispute are 15 feet 9 inch x 8 feet 9 inch while dimensions of the portion vacated by Sukhdai are 15 feet 9 inch x 12 feet 3 inch. The copy of the judgment of the Appellate Court pertaining to the release application of landlady-respondent against Sukhdai was filed before Lower Appellate Court by tenant-petitioner.
4. Landlady-respondent filed application seeking amendment in her release application before Lower Appellate Court. In the amendment application it was stated that by the grace of God the physical condition of landlady's husband had improved and he was in a position to do some job for financial gain for which he required an additional room in which he could meet people in connection with business and that for want of proper accommodation husband of the landlady was meeting people in the room in which he was residing which caused in-convenience and disturbed his privacy. The amendment appears to have been sought to set off the effect of obtaining possession of the shop from Sukhdai. The amendment application was rejected by the Appellate Court by order dated 22nd March, 2003 on the ground that the said amendment was not in consonance with the original case taken in the release application and that release application would have to be decided on the basis of position prevailing at the time of filing of the release application.
5. Before the Lower Appellate Court it was admitted by the landlady that in January, 2003 she had obtained possession of the portion which was in tenancy occupation of Sukhdai. However, the Appellate Court strangely enough held (on pages 78 and 79 of the paper book) that landlady required accommodation for parking her vehicles which requirement could not be fulfilled by the portion vacated by Sukhdai and that landlady required more accommodation on the ground floor for residence and for business. It is unfortunate that Lower Appellate Court did not notice that the same plea had been sought to be added in the release application by way of amendment during pendency of appeal but the amendment application had been rejected by reasoned order dated 22nd March, 2003 (copy of which is Ann.exure-7 to the writ petition). In the release application against Sukhdai exactly the same need, i.e., for garage had been pleaded. Even otherwise if the allegations sought to be added through amendment application are taken into consideration the resultant possession will not change. In the amendment application it was sated that physical condition of the husband of the landlady had improved a lot and he was capable of doing business and was infact meeting with different persons in connection with his business in his residential room on the upper floors where accommodation was not sufficient for the said purpose. However, as on first, second and third floor landlady had got about twelve rooms and the family of the landlady was also not big (consisting of herself, her husband, one son and son's wife) hence there could not be any dearth of accommodation. It has come in the Commissioner's report as well as judgments of both the Courts below that husband of the landlady is having his business office in Premises No. 80/80 Kooperganj hence he did not require any accommodation for office, purposes at the ground floor. It was no where pleaded in the release application that husband of landlady intended to shift his office in the accommodation in dispute.
6. Regarding residential need of the tenant it has been found by the Lower Appellate Court that Babulal brother of tenant's husband was owner of House No. 128/1086-Y Block, Kidwai Nagar, Kanpur and said Babulal died issueless hence tenant and her children had right to occupy the said house.
7. In view of peculiar facts and circumstances of the case the Court during arguments suggested to both the learned Counsel for the parties to persuade the parties to arrive at some compromise. Learned Counsel for landlady stated that landlady was ready to offer Rs. 20,000 as compensation in lieu of vacation of entire tenanted accommodation. Learned Counsel for the tenant stated that tenant was ready to handover possession of the residential portion to the landlady.
8. In my opinion in the facts and circumstances of the case, landlady proved her bona fide need for residential portion which could either be used for residence by the husband of the landlady and/or for receiving persons in connection with his business. The need for garage fully stood satisfied by the release* of the portion in tenancy occupation of Sukhdai.
9. It has been held by the Supreme Court in Dina Nath v. Pooran Lal, 2001 SCFBRC 397 (SC) : AIR 2001 SC 2655, that if Courts below fail to consider the accommodation available to the landlord at the time of filing suit for eviction on the ground of bona fide need and also accommodation (shop) becoming available during pendency of proceedings due to its vacation by tenant then High Court in second appeal will be justified in setting aside concurrent judgments of Lower Courts. In that case, both the Courts below had decreed the suit but the High Court had reversed the judgment in second appeal.
10. In R.N. Gagar v. D. Das, AIR 2003 SC 632, it has been held that if during pendency of proceedings for release on the ground of bona fide need landlord inducts new tenants then Court is bound to take notice of this subsequent event and mould the relief accordingly. However, in the said authority it has further been held that this fact must be brought on record by the tenant at the earliest opportunity otherwise he will not be entitled to the benefit thereof. In the instant case, the tenant promptly brought on record the fact of vacation of a shop by Sukhdai.
11. In view of these authorities of the Supreme Court the findings recorded by the Courts below regarding bona fide need of the landlady for the shop are liable to be set aside as being potently erroneous in law. The Lower Appellate Court committed a grave error of law in taking into consideration the need sought to be pleaded through amendment application after rejecting the said amendment application.
12. Accordingly, writ petition is allowed in part. Accommodation which is being used for residential purposes by the tenant situate on the back side admeasuring 15 feet and 1 inch x 8 feet as shown in the map annexed as Annexure RA-1 to the rejoinder affidavit is released in favour of the landlady. Release application with regard to the portion used as shop by the tenant is rejected. Impugned orders are accordingly modified. The tenant-petitioner is directed to deliver possession of the residential accommodation to the landlady within three months from today.
13. I have held in Khurshida v. A.D.J., 2004 (2) ARC 64, that writ Court while granting relief to the tenant in a rent control matter can enhance the rent. The rent of Rs. 27,50 per month for a shop in Kanpur is virtually no rent. It is, therefore, directed that w.e.f. October, 2004 onwards tenant shall pay the rent of the shop in dispute to the landlady at the rate of Rs. 750 per month.