JUDGMENT S.U. Khan, J.
1. This is landlord's writ petition arising out of eviction/release proceedings under Section 21 of U.P. Act No. 13 of 1972 initiated by him against tenants-respondents No. 3 and 4. The property in dispute is a house. Landlord pleaded in the release application that he was residing in a tenanted house and required a house in dispute for his residential need. It was further pleaded that tenants-respondents No. 3 and 4 had their own accommodation available for residence near the building in dispute. Prescribed authority also appointed a Commissioner who submitted his report after inspection. Release application which was registered as case No. 20 of 1978 was allowed on 7.7.1980 by Prescribed Authority/ Judicial Magistrate-II. Etawah. The prescribed authority found that the need of the landlord was bona fide and balance of hardship also lay in his favour. Tenants filed appeal against the judgment and order of the prescribed authority under Section 22 of the Act, which was registered as Rent Control Appeal No. 57 of 1980. The appeal was allowed by Additional District Judge/Special Judge (E.C. Act), Etawah through judgment and order dated 14.10.1988. This writ petition is directed against the aforesaid judgment of the appellate court.
2. The landlord petitioner had pleaded that initially his father Narain Das was the owner of the disputed accommodation who executed the Will in favour of the petitioner on 18.9.1970 hence after the death of Narain Das petitioner became owner/landlord of the building in dispute. Petitioner impleaded his mother Smt. Genda Rani as proforma opposite party in the release application. She is respondent No. 5 in the instant writ petition. Accommodation in dispute consists of 3 adjacent shops. Gher, and Pharh within boundary wall admeasuring 93 feet x 30 feet. It was also pleaded that after the death of his father, his brothers compelled him to leave the ancestral house and he was residing in a tenanted accommodation with great difficulty along with his family.
3. The tenants pleaded that Smt. Genda Rani mother of the petitioner was the tenant and petitioner collected rent on behalf of her mother that the accommodation in dispute is commercial accommodation hence it cannot be released for residential purpose,
4. Appellate court allowed the appeal mainly on the basis of subsequent events. Tenants in appeal sought to adduce some evidence to the effect that son of the landlord had started business in another city Oral and landlord was also assisting his son in the business there. The appellate court rejected the amendment application of the tenants seeking to incorporate the said plea in written statement but on the other hand on the basis of evidence to that effect allowed the appeal. This approach of the lower appellate court cannot be said to be legal. Even otherwise release on the ground of bona fide need can be denied on the basis of subsequent events only when subsequent events totally eclipse the need otherwise release application is to be decided on the basis of position prevailing on the date of filing of release application. In this regard reference may be made to the following authorities of the Supreme Court :
(1) AIR 2001 SC 803 ;
(2) AIR 2001 SC 1441 ;
(3) AIR 2002 SC 200 ;
(4) AIR 2002 SC 665 ;
(5) AIR 2003 SC 624 ; and (6) AIR 2003 SC 632,
5. In the instant case, release application was filed in the year 1978 and appeal remained pending for about 7 years. If in such situation some temporary alternative arrangement was made by the landlord then it could not disentitle the landlord from seeking release. The main assertion of the tenants in the appeal was regarding establishment of business in another city by the son of the landlord. No cogent evidence had been brought on record before the appellate court to show that the landlord had completely shifted his residence from Etawah to Oral. Landlord had stated that he was residing in a tenanted house. No evidence was brought on record by the tenants to show that the landlord had vacated the said house. The Supreme Court in AIR 1999 SC 100, has held that if a landlord has got a house in the same city then need may not be bona fide. However "to deprive a landlord of the benefit of the ground mentioned in Section 14 (1) (c) on account of availability of alternative residential accommodation, it is not enough that such alternative accommodation is in a far different State. Such accommodation must be available in the same city or town, or at least within reasonable proximity thereof if it is outside the limits of the city." (para 13)
6. Regarding residence of a parent with son or daughter-in-law it has been held in the same authority in para 15 that :
"15. Facts such as the cordial relationship between a landlord and her daughter-in-law or that he is comfortably residing in the present building are not relevant in judging the bona fides of the claim of the landlord. Otherwise it would appear that landlord can think of residing in his or her own residential building only when cracks develop in the relationship between him and his other kith and kin."
7. In view of the above even if it is presumed that landlord as a temporary measure started residing with his son in another city, it cannot be a ground to hold that the need of the landlord stood fulfilled and no more remained bona fide.
8. The lower appellate court also took into consideration that adjoining shop was sold by the landlord during pendency of the litigation. Regarding this aspect, landlord had stated that the shops were also in occupation of other tenants. If a shop in occupancy of a tenant is sold, it cannot be taken to be a ground for holding that the need of the landlord is not bona fide. Landlord is residing in a tenanted house and paying four times rent which he is realising from his tenants, this itself is sufficient to conclude the bona fides of landlord. Under U.P. Act No. 13 of 1972 a residential building cannot be released for commercial purposes but there is no bar in seeking release of commercial accommodation for residential purpose.
9. The litigation was initiated in the year 1978 still tenants did not make any effort to search alternative accommodation. Long possession of the tenant cannot be a ground by itself to dismiss the release application on the ground of comparative hardship vide AIR 2003 SC 780.
10. Accordingly, I hold that the judgment passed by lower appellate court is patently erroneous in law. Correct principles of law have not been applied by lower appellate court in determining bona fide need and comparative hardship. Writ petition is, therefore, allowed. Judgment and order passed by lower appellate court is set aside and judgment and order passed by the trial court is restored. Release application of the landlord stands allowed.
11. Tenant respondents are granted six months' time to vacate provided that within one month from today they file an undertaking before prescribed authority to the effect that on or before the expiry of aforesaid period of six months they will willingly vacate and handover possession of the accommodation to the landlord.