Shitla Prasad Srivastava, J.@mdashThis petition under Article 226 of the Constitution of India has been filed by the petitioner for quashing the order dated 26th August, 1997 and 10th July, 1997, passed by the respondent, which has been filed as Annexures12 and 11 to the writ petition respectively.
2. The relevant facts giving rise to the present writ petition are that earlier to the present dispute an application under Section 21(1) (a) of the U.P. Urban Building (Regulation of Letting Rent and Eviction) Act, 1972, herein after referred to as the Act was filed by the landlord, Bal Swarup Srivastava for releasing the house in dispute in his favour.
3. The application was contested by the petitioner. The Prescribed Authority by its judgment dated 13th November, 1974 rejected the application. The landlord filed an appeal which was dismissed on 9th May, 1997. Thereafter the Writ Petition No. 1250 of 1997 was filed by the landlord. In that writ petition an application was filed alongwith the supplementary affidavit for amending the grounds of the writ petition to the effect that by saledeed dated 15th April, 1978, the petitioner has acquired the residential house in Jhansi, as such in view of the explanation (1) of Section 21 (1) of the Act, need for the tenant/defendant cannot be looked into, that application for amendment was contested by the tenant, that the tenant is using the accommodation in question for running a BIDI factory as such it is a business establishment and explanation 1 of Section 21 (1) of the Act will not apply. That writ petition was dismissed on 311079. Judgment is reported in 1983 Volume 2, Allahabad Rent Cases 543,
4. Landlord filed second release application giving rise to this case under Section 21(1) (a), numbered as P.A. Case No. 43 of 1981. The contention of the landlord in this application was that in private partition the accommodation in question has come in the share of the landlord/respondent No. 1 and as the petitioner/tenant has purchased house No. 108 in Mohalla Purani Pasarat in the name of his wife, therefore, he does not require the present house and the need of the landlord is genuine.
5. The petitioner contested the application challenging the compromise decree passed in Suit No. 80 of 1980 and further that the application is not maintainable, as there is no change in the circumstances mentioned in the first application and this second application.
6. The Prescribed Authority rejected the release application by order dated 12th October, 1984. An appeal was filed by the landlord which was allowed and the case was remanded to the Prescribed Authority, vide ordfcr dated 21st October, 1986. Second Writ Petition No. 110 of 1987 was filed against the remand order by the petitioner. The writ petition was allowed and the matter was sent back to the appellate court to decide the appeal within three months frbm the date of the production of the certified copy of the order. The parties were given liberty to file the additional evidence. This order was passed by this court on 30th April, 1997.
7. The order passed by the High Court remanding the case has been filed by the petitioner as Annexure6 to the writ petition. The relevant portion of the order is quote herein below.
"Learned Counsel for the petitioner submitted that instead of remanding the matter, the appellate Authority could itself have decide the matter. It is unfortunate that against this remand order the matter is pending for ten years. Sri K. N. Saxena learned Counsel for the respondent No. 2 has no objection if the matter is decided by the appellate authority. The appellate authority has power to take additional evidence also.
Respondent No. 1 shall decide the appeal within three months from the date of the production of a certified copy of this order, on merit. In case any of the parties want to file any additional evidence they can do so within three weeks from today. The writ petition is allowed. The order dated 211096 is hereby quashed. It is however, made clear that as the matter is being directed to be decided by respondent No. 1, any observation made in the order passed by respondent No. 1 shall not be treated to have been set aside on merits."
8. That an application was filed by the petitioner on 4th July, 1997 before the appellate court alongwith the order of the High Court with an application to condone the delay and some additional evidence was also filed. Additional evidence was the copy of the plaint of Suit No. 94 of 1993, Bal Swarup v. Kanta Prasad and others and affidavit of Bal Swarup. These applications have been filed as Annexure7 to the writ petition. In the application it is mentioned that the evidence could not be produced within three weeks, therefore, the delay may bejgondoned and the evidence which has been annexed with the application may be accepted in the evidence.
9. Application for additional evidence was contested by the landlord on the ground that the High Court has granted three weeks time only, the application is highly belated, therefore, it may be rejected. An application was also filed by the appellate to summon certain documents from the Excise Department. Commission may be issued for getting certain reports and then the case may be decided. This appellant was also contested by the landlord.
10. The appellate court on 10th July, 1997 considered High Court''s direction and the application filed by the petitioner for additional evidence and application for summoning the record also and it rejected the prayer for summoning the record on the ground that there is no such direction of the High Court, so far as issue of Commission is concerned. The Court held that the evidence is already there on the record, therefore, the prayer for commission was also rejected. So far as the additional evidence which was filed alongwith the application was concerned, the court held that the petitioner was a party in the High Court, he cannot say that he had no knowledge of the judgment. The petitioner has challenged this order also. After rejecting the applications the appellate court allowed the appeal on 26897 of the landlord, set aside the order dated 12th October, 1984, released the accommodation in favour of the landlord, directed the petitioner to vacate the premises within 30 days from the date of the order. The petitionej has challenged this order also in this writ petition.
11. Parties have exchanged counter and rejoinder affidavits.
12. I have heard the learned Counsel for the parties and perused the papers available on record. Learned Counsel for the petitioner has urged that when the High Court directed that the appeal should be decided by Vth Additional District Judge, then it should not have been decided by I Vth Additional District Judge, therefore, the order is without jurisdiction. His second contention is that second release application was barred by the principle of constructive resjudicata being filed on similar grounds. Further submission is that the petitioner had right to challenge the genuineness of the partition decree in favour of the landlord. The partition decree should not have been considered by the appellate court. A commission should have been issued to ascertain the spot position. Further contention is that after the death of Kanta Prasad Advocate, who was brother of the landlord and had 1/3 share came in the share of Kalka Prasad and the present applicant. The finding of the appellate court that he was residing at the mercy of Kalka Prasad is against the record. It is further argued that the petitioner was doing bidi business, therefore the finding given by the court that the house was given for residential purposes is illegal and against the record. His further contention is that the photostat copy of the licence was wrongly interpreted as such the finding is perverse. Learned Counsel for the petitioner has vehemently urged that while remanding the case on 13th July, 1997, the High Court has confirmed the earlierremand order dated 21st October, 1986, therefore, the appellate court should have considered the direction issued in the earlier remand order dated 21st October, 1986.
13. Learned Counsel for the respondent, Sri K. N. Saxena in reply has urged that the petitioner is misinterpreting the order passed by the High Court, as well as the order dated 21st October, 1986 passed by the appellate court on earlier occasion remanding the case to the Prescribed Authority. The order dated 211086 has been filed by the petitioner as Annexure5 to the writ p''etition. This is a lengthy order and K. N, Saxena has placed it before the court in support of his argument. His contention is that the appellate court in paragraph 9 of the judgment considered the bona fide requirements of the applicant and said as the case is being remanded back to the Prescribed Authority for consideration of the provisions of Rule 16(2) (b) of the Act and as to whether the accommodation in question was given for residential purpose or for commercial purpose, the Prescribed Authority will take evidence of licence by summoning them as the applicant had prayed for two application and to call for the commissioner''s report, if the application filed by the applicant for the same in respect of the house No. 108 to carry on and shift bidi manufacturing business of the tenants besides family residence and the parties may also give more evidence on the point, if they so desire, before the appointment of the Commissioner. He also placed before this Court paragraph 6 of the judgment which has been mentioned by the learned Judge in paragraph 9 of the judgment. He has submitted that the direction was that the Prescribed Authority must also summon the record, may also call for commissionner''s report of house No. 108 and then decide the matter. Sri Saxena has urged that as this High Court did not approve the order of theremand dated 21101986 and directed the appellate court to decide the controversy giving limited time to the parties to lead evidence and simply made observations that the observation made by the appellate court shall not be deemed to have been set aside. It means that if the application is filed for summoning the record etc. as per the observations made by the appellate court remanding the case earlier then the appellate court should have summoned the record and further that the observation of the appellate court was that if the application is filed by the landlord for Commission, the Prescribed Authority will inspect the accommodation in question and other accommodation. He submitted that there was no direction to the landlord that he must apply for commission. His contention is that as the landlord has not applied forCommission and application for summoning the record from the Excise Department was filed against the direction issued by the High Court, it cannot be said that the direction given by the High Court has not been complied with, or the observation made by the appellate court while remanding the case on earlier occasion has been overlooked. His further contention is that the petitioner has not filed any evidence to prove that the allotment was made in his favour for business purpose, rather the finding is that it was taken for residential purpose and that the need of the landlord is genuine and bona fide and that the tenant has purchased house and further that the Rent Control and Eviction Officer has no jurisdiction to hold that the decree is conclusive for that purpose he has placed reliance on 1989, U.P. Rent Control Cases 585, and few other cases. His submission is that the finding of fact has been recorded by the appellate court, therefore, no interference is required under Article 226 of the Constitution of India.
14. In reply Sri B. N. Agrawal, learned Counsel for the petitioner has submitted that the local inspection was necessary in this case. For the purpose he has placed reliance on 1997 (1) ARC85, Amar Nath v, IX Additional District Judge, Agra, Para 6, 1982 Allahabad Rent Cases 246, Ram Bilas Pandey v. Additional District Judge and on misleading of evidence he has cited 1983 ARC (Vol. 1) 10, case of .BajyAta/z Dass and for the purpose oibonafide need he has submitted that it was for the landlord to prove his need and placed reliance on 1995 (Vol. 1) ARC 620; 1984 (Vol. 2) ARC 245.
15. From the arguments of the learned Counsel for the parties, it emerges that the sole controversy for the decision in the present case is as to whether the appellate court has decided the case as directed by this Court and in accordance with law. As said earlier and argued by Sri K. N. Saxena, learned Counsel for the respondent, the High Court gave some time for filing the documents, it was not done within time, therefore, the application was rightly rejected by the court below. The observation made by the court that the observation made by the appellate court on the earlier occasion shall not be deemed to have been set aside, even if it was intact. The application should have been filed by the tenant before the appellate court for summoning the licence etc. from the Excise Department within the time prescribed by the High Court, but as it was not done that application was rightly rejected by the court. The prayer for commission was also refused by the court as in the earlier remand order it was observed that if the landlord applied for commission, the court will inspect the spot and it was not a direction that the landlord must apply, therefore, that prayer was also rejected by the court, so the order dated 1071997 does not require any interference.
16. So far as the order dated 26th August, 1997 is concerned, I am of the view that the appellate court has considered the effect of the decree passed in Suit No. 80 Kanta Prasad v. Kalka Prasad and that the applicant is a retired person, he was serving in D.A.V Inter College, Kanpur, In his family his wife, Vishnu Mohini, Son Gyanendra Swarup, Virendra Swarup and daughters are members and that there is no evidence, that after death of Kanta Prasad his share has come to the present landlord, therefore, the need of the landlord is genuine. The appellate court has also considered the comparative hardship and has given a finding that the tenant has purchased the house No. 108, Purani Parasath Jhansi and it is a big house and he can easily shift in that house. So this finding of fact has been given by the appellate authority.
17. Learned Counsel for the petitioner as said above has placed reliance on 1982 Allahabad Rent Cases 246, Ram Niwas Pandey v. Vlhh Additional District Judge, Kanpur. In this case the power of the appellate court was considered when the finding was to be reversed and it was to be seen whether the report of the Commissioner should have been considered by the appellate court also. Learned Counsel for the petitioner has urged that the report of the Commissioner was must, but as stated above, the appellate court has rejected the application for commission on the ground that there are materials on record to decide the controversy that the appointment of Commissioner is not mandatory. He has also placed'' reliance on 1983 Allahabad Rent Cases 10; Shri Brij Nath Dass and others v. Hnd Additional District Judge, that if the appellate court passes the order ignoring the material evidence, the said order results in miscarriage of justice. From the judgment of the appellate court it is apparent that he has considered the evidence which was available on record, therefore, it cannot be said to be an order without appreciation of evidence. The third decision cited by the learned Counsel for the petitioner, Sri B. N. Agrawal is 1997 Allahabad Rent Cases, 85 ; Amar Nath v. IX Additional District Judge, Agra, for the purpose that the decision of the appellate authority in the remand matter should be based on the directions issued by the High Court. He has placed reliance on para 6 of the judgment. I am of the view that the direction of the High Court has been fully complied with, therefore, there is no illegality in the order passed by the appellate court.
18. The writ petition fails and it is dismissed accordingly, but there will be no order as to costs.
