JUDGMENT S.U. Khan, J.
1. This is tenant's writ petition arising out of eviction/release proceedings initiated by original landlord respondent No. 3 Mohd. Shafi on the ground of bonafide need under Section 21 of U.P. Act No. 13 of 1972 in the form of Case No. 1 of 1982 on the file of Prescribed authority, Shikohabad district Mainpuri. Property in dispute is a shop rent of which is Rs. 20/- per month. At the time of the filing of the release application landlord had four sons Shamshad Irshad, Mohd. Nazim and Mohd. Kazim. Prescribed Authority through judgement and order dated. 27.4.1985 rejected the release application. Against the said judgement and order original landlord Mohd. Shafi filed Miscellaneous Civil Appeal No. 96 of 1985: Before the Appellate Court landlord admitted that two of his sons Shamshad and Irshad had been allotted a shop hence shop in dispute was required only for himself. The appellate Court found that landlord had no shop, hence his need was bona fide. This finding was perfectly correct. However, I may mention that in para 23 of the written statement tenant had mentioned that his need was greater than the need of the landlord. From this assertion Appellate Court concluded that tenant had himself admitted the need of the landlord. I can not approve this view. The tenant had only meant that in case of eviction he would suffer greater hardship. The mere use of the word that tenant's need was greater than the need of the landlord did not amount to admission of the tenant of the need of the landlord. However, thereafter Appellate Court found that landlord requried a shop or his business and he was not having any shop and hence his need was quite bonafide. This finding is approved.
2. In respect of comparative hardship Appellate Court rightly held that tenant did not make any efforts to search alternative Accommodation hence question of comparative hardship had to be decided against him. This finding is perfectly in consonance with the judgemert of the Supreme Court reported in B.C. Bhutada v. G.R. Mundada . Accordingly it is held that there is absolutely no error in the finding of boanfide need and I comparative hardship recorded by the Appellate Court / First A.D.J. Mainpuri in his judgement dated 20.9.88 through which appeal was allowed and Judgement and order of the Prescribed authority was set aside and release application was allowed.
3. This writ petition is pending since 1988. Unfortunately in the year 1999 landlord Mohd. Shafi died. On 8.2.2006 when this writ petition was heard in part by me, I directed the parties to file affidavits in view of the Supreme Court authority reported in K.N. Agarwal v. Dhanraji Devi 2004 (2) A.R.C. 764. In the said authority it has been held that if landlord for whose need alone building is released, dies during pendency of the proceedings (writ petition), then Court (writ court) has to take this fact into consideration. Para 30, 31 and 32 of the said Authority are quoted below:
30. Conjoint reading of Clause (a) of Sub-section (1) and Sub-section (7) of Section 21 makes it clear that where the possession is sought by the randlord on the ground of bona fide requirement and during the pendency of the application, the landlord dies, his legal representatives can prosecute such application on the basis of their own need in substitution of the need of the deceased.
31. In the light of decisions referred to by us, particularly in Hasmat Rai and the provisions of Sub-section (7) of Section 21 of the Act. the High Court has consider the matter and record a finding.
32. For the reasons aforesaid, the appeal deserves to be allowed by setting aside order passed by the High Court. The matter is remitted to the High Court with a direction that the High Court shall consider the subsequentent event of death of both the applicants and also the provisions of Sub-section (7) of Section 21 of the Act in the light of observations made hereinabove and pass an appropriate order in accordance with law after hearing the parties.
4. Thereafter on 22.2.2006 supplementary counter affidavit was field by landlords, who have been substituted at the place of original landlord-respondent No. 3. On behalf of tenant petitioner rejoinder affidavit was also filed. In par 12 of the counter affidavit by the landlords, it has been stated that in the year 1988 Mohd. Nazim was 12 years of age and Mohd. Kazim was 7 years of age. In para 15 of the said affidavit it has been stated that Me J. Nazim has got a wife and two children and Mohd. Kazim is also married having no children and both these sons of original landlord are not working any where. Thus need exists for these two sons. In reply to the said assertions in para 8 of the rejoinder affidvit. it has been stated that Mohd. Nazim and Mohd. Kazim are carpenters and carrying on their business and they work in a furniture shop of Main Furniture Shop. In this manner it has been admitted that Mohd Nazim and Mohd. Kazim have got no place of their own to work. According to the rejoinder affidvit, they are working as servants on some furniture shop. Even though the said allegation is not admitted by the landlord, however, even if it is assumed that Mohd. Nazim and Mohd. Kazim are working as employees in some other shop their need to establish their independent business from their own shop is very much there. If for want of proper accommodation some one is compelled to work as an employee in another shop, his need can not be said to be not bona fide. It has been held by the Supreme Court in Ram Kubai v. H.D. Chandak , that doing some stop gap sundry job does not mitigate against the need to start independent business.
5. As the fact that Mohd. Nazim and Mohd. Kazim are not doing any independent business has been admitted, hence there is no need to remand the matter to the trial court. In the aforesaid authority of K.N. Agarwal Supreme Court remanded the matter to the High Court and not to the Court of Prescribed Authority or appeal. If some complicated question of fact had been involved in this case then the remand would have been considered appropriate.
6. Accordingly I am of the opinion that the writ petition is liable to be dismissed as subsequent event of death of original landlord stands nullified by the need of two of his sons Mohd. Nazim and Mohd. Kazim, which cropped up during pendency of this writ petition.
7. Accordingly, writ petition is dismissed.
8. Tenant petitioner is granted six months time to vacate provided that:
9. Within one month from today he files an undertaking before the Prescribed Authority to the effect that on or before the expiry of period of six months he will willingly vacate and handover possession of the accommodation in dispute to the landlord-respondent.
10. (ii) For this period of six months which has been granted to the tenant to vacate he is required to pay Rs. 3,000/- (at the rate of Rs. 500/-per month) as damages for use and occupation. This amount shall also be deposited within one month before the Prescribed Authority and shall immediately be paid to the landlord-respondent.
11. In case of default in compliance with either of these conditions, tenant-petitioner shall be evicted after one month through process of Court.
12. It is further directed that in case undertaking is not filed or Rs. 3000/- are not deposited within one month then tenant-petitioner shall be liable to pay damages at the rate of Rs. 1000/- per month since after one month till the date of actual vacation.
13. Similarly, if after filing the aforesaid undertaking and depositing RS. 3,000/- the accommodation in dispute is not vacated on the expiry of six months then dam ages for use and occupation shall be payable at the rate of Rs. 1000/- per month since after six months till actual vacation.