JUDGMENT K. M. Dayal, J. 1. The present petition has been filed by a tenant against an order passed by the Hnd Addl. District Judge Allahabad, allowing an appeal of the landlord and ordering his eviction from the premises in dispute under Section 21 (1) (a) /22 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, XIII of 1972 (hereinafter called the Act). The learned counsel for the petitioner argued that the disputed premises were in the tenancy of the petitioner for the last twenty five years and he has been carrying on business therein. Earlier there has been litigation under section 3 of U. P. Act No. Ill of 1947 ; that litigation having failed, the landlord waited for sometime and thereafter an application under section 21 (1) (a) was moved almost on the same grounds. As the application was moved under section 21 (1) (a) after expiry of six months, the court below held that it was not barred by Rule 18 framed under the Act. The Addl. District Judge has also found that the premises were used for residential purposes as well as for business purposes. The upper portion, consisting of only one residential room, was being used for residential purposes; whereas the ground floor consisting two Dars was used for business purposes. 2. The finding of the court below is that the family of landlord is expanding family and two of the grandsons of the landlord (sons of Bhola Nath) and one of the sons Bachan Lal has to be established in business as they are not doing any business. For the aforesaid purpose the application under section 3 also was made. The learned counsel for the petitioner argued that as the application under section 3 of U. P. Act No. Ill of 1947 was rejected only recently and no new circumstances has intervened, the court below was bound by the decision in the proceedings under section 3 of the U. P. Act No. Ill of 1947. His argument was that Rule 18 was a rule of evidence and by virtue of that rule the matter could not have been agitated within a period of six months. His argument was that Rule 18 was a rule of evidence and by virtue of that rule the matter could not have been agitated within a period of six months. The learned counsel for the petitioner argued that inspite of the period of six months having been prescribed by the rule, the court below could certainly take into consideration the decision in the proceedings under section 3 of U. P. Act No. Ill of 1947 if there was no change in the circumstance of the parties. So far as the principle is concerned, I agree with the learned counsel for the petitioner only with some modifications in the aforesaid plea. Section 11 CPC does not apply to the present proceedings. Doctrine of res-judicata can be applied only if there was no statutory provision. Rule 18 has provided for the bar in the nature of res-judicata. Under the circumstances it cannot be said that the subsequent application as such was barred under Rule 18 framed under the Act. 3. One thing, however, may be clarified that the fact that an earlier application on the same ground having been rejected is a relevant fact and that judgment could be seen under section 13 of the Indian Evidence Act and it will not be proper to throw out that judgment totally. However, since the application under section 3 of old Act was rejected and the present application under section 21 of U. P. Act No. XIII of 1972 was made and has been pending for a period of about nine years, the position of the parties have changed. It is true that the District Judge has made certain observations in his judgment on certain matters which are not very relevant for the purpose of the case ; for example another accommodation for residential purposes i.e. 164 Baluaghat was available to the landlord and one accommodation for business purposes 506 Muthiganj was released in favour of the landlord. He has held that it was the right of the landlord to choose the particular building where he wanted to start his business. The principle is not of universal application as stated by the court below. Where a choice is to be made between different tenants certainly the landlord has got to chose one for eviction. The other situation may be in a case where vacancy occurs in respect of several accommodations. The principle is not of universal application as stated by the court below. Where a choice is to be made between different tenants certainly the landlord has got to chose one for eviction. The other situation may be in a case where vacancy occurs in respect of several accommodations. The landlord has to chose the most suitable accommodation amongst them. Where sole tenant is to be evicted, there is no question of uprooting a sitting tenant if other accommodation was available. In the instant case, however, I find that the landlord's requirement has been found to be genuine and bonafide and that being a finding of fact is binding on me. Even on merits after considering the accommodation 164 Baluaghat, it has to be decided if the residential requirement of the landlord has been satisfied. The report of the Commissioner who inspected is Annexure 'IV' to the petition. A supplementary report submitted by the same Commissioner is filed as Annexure 6' to the counter Affidavit. Both these reports do not disclose that any portion is surplus with the landlord. House No. 471 Muthiganj which contains many rooms has also been reported to have been occupied fully by the landlord. However the tenant has placed that the upper portion of the disputed building was also being used for business purposes and not for residential purposes as his Beoparis stay there. Therefore, the residential requirement of the landlord or the tenant is not very relevant. What is relevant is the business accommodation available to the tenant and to the landlord. Only one business accommodation is available to the landlord i.e. 505 Muthiganj. According to the petitioner that accommodation is a fairly good accommodation for the purposes of business and the landlord could start business in the aforesaid building. 4. In paragraph 14 of the petition it has been alleged that 505 Muthiganj, Allahabad was a suitable place for the landlord and he got the same released for his business purposes. He has not started any business so far, and this fact has been ignored by the court below in holding that the landlord's requirement for business accommodation was genuine. If the accommodation was for business purposes and the landlord's children wanted to start the business, they could start by utilising the same. The learned counsel for the respondent, however, argued that a Dal Mill is there and it is locked since 1976. If the accommodation was for business purposes and the landlord's children wanted to start the business, they could start by utilising the same. The learned counsel for the respondent, however, argued that a Dal Mill is there and it is locked since 1976. Besides that the landlord has no finances. If the landlord wanted to run the Dal Mill, there could be no difficulty in having the partners or in getting the finances through several agencies private and government. This aspect of the matter has not been considered by the lower appellate court. Further the lower appellate court has alleged that the landlord wanted to set up his sons separately and independently during her life time. Every parent wishes that his children may be set up in their life time and it appears that her eldest son Bhola Nath, is to retire on 4th July 1981 as observed by the court below. The court below has also based his finding on the fact that Bhola Nath also wants to start business in the same premises after his retirement. The court below has also held that the disputed accommodation was required for Bachan Lal and his family. The court below has further held that the accommodation will be required for the residence of the family of Bachan Lal. If that is so then the requirement of the upper portion or residential portion of the building should have been considered in that light. 5. Another important change that has been brought about in the present case is that the landlord has alleged that the tenant has altogether closed his business (Annexure C. A. 10). In case the tenant has actually closed his business, his need disappears. However, in the rejoinder affidavit this has been denied and it is not possible for this court to go into the disputed questions of the fact at this stage in the writ petition. It has further been alleged by the petitioner in a rejoinder affidavit that Bachan Lal has left Allahabad for good and there is no question of any business being set up for him. That fact is also denied by the landlord. The landlord also relies on Annexures 1, 2 and 3 to the supplementary counter affidavit that the landlord has closed the business. That fact is also denied by the landlord. The landlord also relies on Annexures 1, 2 and 3 to the supplementary counter affidavit that the landlord has closed the business. It so appears that during the pendency of this litigation for such a long period circumstance of the parties have considerably changed. These questions of fact cannot be decided in present petition and they have to be decided by the District Judge i.e. the court below. Under the circumstances without expressing any opinion on any question of fact I set aside the order Annexure 12 to the writ petition and further direct that the respondent No. 1 will decide the appeal afresh within three months from today. The parties are directed to file supplementary affidavits in the appeal itself within three weeks from today. Two weeks thereafter will be available to the parties to reply to the affidavits filed by the other party respectively. The appeal itself be decided within the aforesaid period. The parties are directed to bear their own costs. A copy of this judgment may be delivered to the learned counsel for the petitioner on payment of usual charges within one week. Petition allowed.