Neutral Citation No. - 2025:AHC-LKO:39784 Court No. - 7 Case :- WRIT - A No. - 50 of 2022 Petitioner :- Brij Narain Mishra Respondent :- Ranjit Bhargava And Others Counsel for Petitioner :- Lalta Prasad Misra,Deepanshu Dass,Naveen Shukla Counsel for Respondent :- P C Mishra Hon'ble Pankaj Bhatia,J. 1. Heard Dr. L.P. Misra, learned counsel for the petitioner and perused the material brought on record. None turned up on behalf of the respondents even in the revised call. 2. Despite the order passed by this Court, no counter affidavit has been filed, thus the averments contained in the present writ petition would be treated to be correct and unrebutted. 3. The present petition has been filed by the petitioner challenging an order dated 22.12.2021, whereby the appeal preferred by the landlord respondent came to be allowed. 4. The facts in brief are that the respondent landlord being the owner of the premises, of which, the petitioner is the tenant, filed an application under Section 21(1)(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "U.P. Act No. XIII of 1972") in the year 2013, which came to be registered as P.A. Case No. 2 of 2013. The said application is on record as Annexure No. 4. In the said application, it was alleged that the monthly rent of premises is Rs.1800/- excluding the water tax. It was also stated that the opposite party without permission in writing has made additional construction and has made structural alterations resulting into disfiguring of the property. It was also stated that the lease period has expired by efflux of time, for which, a notice has already been sent on 22.02.2012 through registered post and despite service of notice, the premises was not vacated. It was also undertaken that the applicants were ready to pay two years' rent as compensation in terms of the prescription contained in second proviso of clause 21(1). On the basis of the said pleadings, release was sought. It was also stated that the tenant was carrying commercial activity from the premises in the form of "Dhaba", which caused a lot of nuisance to the landlord and made the residence unliveable. 5. The petitioner filed written statement denying the contentions contained in the application, however the rent in question was admitted to be Rs.1800/- per month. It was denied that there was any prescribed period of tenancy and the service of notice was also denied. It was specifically stated that the premises is governed by the U.P. Act No. XIII of 1972. It was also stated that the applicant was having various premises, thus he does not need the premises and, the need was not bonafide, whereas the need of the opposite party was more genuine. A replication was filed by the landlord wherein specific assertions were made in Para 5 & Para 9 with regard to the bonafide need of the landlord on account of the growth in the family members. The specific assertions made in the written statement with regard to the properties available were specifically denied as being available for the residential premises. No reply to the said replication was filed by the petitioner. 6. On the basis of the said pleadings and the evidences led, the prescribed authority framed five points of determination. While determining the first point, it was held that the relationship of landlord and tenant was accepted. The point with regard to sending of notice was decided against the plaintiff. Point No. 3 with regard to establishing bonafide need was decided against the plaintiff mainly on the ground that even in the application, no facts with regard to the actual need were stated by the landlord and ultimately, the suit in question came to be dismissed on 17.09.2018. 7. Aggrieved against the same, the plaintiff filed an appeal under Section 22 of the U.P. Act No. XIII of 1972. In the appeal, it was stated that the appellant was the owner of the premises, in which the petitioner was the tenant. It was also stated that need of the landlord was bonafide. The age of the landlord was also pleaded to impress the appellate Court. It was also stated that the list of the properties mentioned were not in the possession of the landlord and were involved in various litigation with the various tenants. The petitioner herein relied upon the defence taken in the release application. 8. The appellate Court has noticed that no written objections were filed to the ground taken in the appeal. The appellate Court framed two points of determination. The appellate Court recorded that on the basis of pleadings contained in the record of the trial Court, specific pleading with regard to bonafide need was made. It was also noticed that the landlord in his application i.e. C-14 has taken a ground that his family has become big and the change circumstances should be seen for determining the bonafide need. It was also noticed that the plaintiff had stated that the premises in question was a residential premises, which fact is admitted by the petitioner herein to be used for commercial purposes. It also recorded that the trial Court had noticed that the list with regard to number of family member was not disclosed and on the said ground, need of the plaintiff was not found to be established. The appellate Court also noticed that various proceedings have been initiated by the landlord against the other tenants, which were pending. The Court also noticed the age of the landlord and also the fact that during the pendency of the proceedings no efforts were made by the petitioner herein for searching an alternate premises. 9. Thereafter, the appellate Court considered the arguments of the petitioner to the effect that the landlord was a rich person having various properties, which was repelled on the ground that merely because there was various properties available, nothing stops the landlord for moving a release application for residential purposes. The Court also noticed that this fact has not disputed or rebutted by the petitioner. The Court also noticed that the petitioner was in occupation for almost 46 years till that time the landlord had attained the age 67 years. The Court accepting the contention of the landlord that the other properties were under tenancy and subject matter of litigation. The Court also stated that when, the premises were given on rent, the age of the petitioner was 20-25 years and subsequently he was married and his family has increased. The Appellate Court also noticed the finding recorded by the prescribed authority. Specifically, the pleadings in the application that the landlord was staying in the premises along with his family, where the petitioner was running a commercial shop restaurant (Dhaba), thus based upon the said observations coupled with the fact that the petitioner did not make any effort to search any alternative premises proceeded to establish that the need set up by the landlord was bonafide and had increased with the passage of time during the pendency of the appeal. Based upon the said, the order of the trial Court was set aside and the release application was allowed. 10. In the present writ petition, the counsel for the petitioner strenuously argues that the bonafide need was not set up in the application filed under Section 21(1)(a) of the U.P. Act No. XIII of 1972. It is further argued that notice under Section 106 of the Transfer of Property Act was not served. It is further argued that in the absence of there being pleadings with regard to bonafide need, the release application was rightly rejected by the prescribed authority. It is further argued that the appellate Court has not upset the findings based upon consideration of any evidence and has decided the appeal on surmises and conjectures holding that the need must have swelled with passage of time. It is further argued that the premises is in occupation of the petitioner and is being run as a Restaurant or Dhaba, which is the only source of livelihood of the petitioner and in case the impugned order is sustained, it would cause a irreparable hardship to the petitioner. 11. My attention is also drawn to the specific pleading contained in paragraph nos. 31 & 32 of the petition, wherein it has been stated that the plaintiff has huge and more than 20 accommodations available at Lucknow including the house in which the premises in question is situated, which was given through a will-deed dated 24.05.2010 and the plaintiff has two residential flats lying vacant. It was also stated that a portion of "U.P. Film Chambers of Commerce" on the ground floor of the building is lying vacant to the plaintiff, as such, the plaintiff has no need, much less bonafide need. In the light of the said, it is argued that the impugned order cannot be sustained and needs to be quashed. 12. Two things that emerge and are importance are firstly that no counter affidavit has been filed in the present writ petition and secondly that the petitioner has not filed any defence in the appeal as is recorded in the appellate Court and not controverted through any pleading in the writ petition. The fact remains that in the application and replication there were pleading of bonafide need by the plaintiff, however, the same was not accepted by the prescribed authority. The appellate Court rightly considered that by the passage of time, the family must have increased. It is not necessary that bonafide need has to be established by arithmetic precision. The Appellate Court noticed that the pleadings in the release application and replication (to which no reply was filed) and also the evidence of P.W. 1, P.W.2 and P.W. 3 on record which substantiated the pleadings in the application and replication in respect of bonafide need. The fact also remains that during the whole 46 years of tenancy, the petitioner never make any effort to search alternative accommodation, which is one of the criteria for determination while deciding the release application under Section 21(1)(a) of the U.P. Act No. XIII of 1972. Even in paragraph nos. 31 & 32 of the writ petition, although it has been stated that additional premises is available to the plaintiff, it is fairly well established that a landlord cannot be dictated to stay in a premises of the liking of the tenant. The landlord is entitled to seek release of the shop in which he wants to stay and the tenant has no right to dictate. 13. In view thereof, no good grounds for interference are made out. The writ petition is dismissed, the appellate order is upheld. 14. After arguing, the counsel for the petitioner seeks to vacate the premises in question. In view thereof, the petitioner is granted one year's time to vacate the premises in question i.e. up to 30.07.2026 subject to the petitioner filing an undertaking in the form of an affidavit within three weeks i.e. up to 31.07.2025 before the Court concerned undertaking to vacate the premises on or before 30.07.2026 and to handover the vacant and actual physical possession to the landlord and to no one else. The arrears of rent shall also be deposited within a period of three months, if due. It is also essential to notice that the U.P. Act No. XIII of 1972 has been repealed by a new U.P. Tenancy Act, 2021, thus the rigors that were applicable in the U.P. Act No. XIII of 1972 have lost its efficacy by passage of time. The rent as is being paid in the interim order of this Court shall be paid till the date of actual vacation of the premises in question. Order Date :- 11.7.2025 Arun Digitally signed by :- ARUN KUMAR High Court of Judicature at Allahabad, Lucknow Bench