ORDER S.D. Agarwala, J. - This is a petition under Article 226 of the Constitution of India arising out of proceedings for release of two shops bearing Municipal Number 946 situate in Bazar Sarak, Tehsil Deoband, District Saharanpur. The petitioner is the landlord. Opposite party No. 3 is the tenant in the said premises. Prior to the filing of the release application under Section 21 of the U.P. Act XIII of 1972 the petitioner had also filed an application under S. 3 of the old U.P. Act 3 of 1947 for permission to file a suit for ejectment against opposite party No. 3 on the ground that the accommodation in dispute was bona fide required by the petitioner as he wanted to carry on business of gunny bags and empty drums in order to augment his income as he was unable to meet the expenses of his family which consists of self, wife, four daughters and two sons. On 1-11-1969 the Rent Control and Eviction Officer granted permission. The Commissioner under the old Act reversed this order on 27th October, 1970 Thereafter the petitioner filed a representation under Section 7-F of the old Act before the State Government. The State Government allowed the representation on 9-12-1971 and granted the petitioner permission to file a suit for eviction under Section 3 of the old Act. The opposite party No. 3 thereafter challenged the order of the State Government dated 9-12-1971 by means of a writ petition No. 99 of 1972 (reported in 1975 All LJ 217) before this Court. During the pendency of the petition. U.P. Act XIII of 1972 came into force but since the application was under the old Act it was decided in accordance with the provisions of old Act. Learned single Judge of this Court took the view that the finding recorded by the State Government was perverse and that since the opposite party No. 3 had got no alternative shop where he can set up his business, the permission should not have been granted and the need of the opposite party No. 3 was greater than that of the petitioner. With these observations the writ petition was allowed and the order of the State Government was set aside. 2. The petitioner during the pendency of the writ petition in this Court also retired on 17th July, 1973. With these observations the writ petition was allowed and the order of the State Government was set aside. 2. The petitioner during the pendency of the writ petition in this Court also retired on 17th July, 1973. After the decision by this Court the petitioner waited for some period and thereafter on 10th May, 1978 moved an application under Section 21 of the U.P. Act XIII of 1972 on the ground that he needed the shop for his personal use. The case of the petitioner was that he had retired from service at Ganga Sugar Mills since 1973 and he was still unemployed. He has a family consisting of his wife, four daughters and two sons besides himself. The only earning of the petitioner is in the form of rent which is Rs. 29.37 from the opposite party No. 3 and a sum of Rs. 15/- per mensem as rent for a kothari situate at the back of the disputed shops. In view of the large family he wanted to set up the business of gunny bags and empty drums. This application was opposed by the opposite party No. 3 on various grounds, inter alia, that the finding recorded in the earlier proceedings operated as res judicata in the present proceedings. It was further alleged that the opposite party No. 3 does not have any alternative accommodation where he can shift his business which he is carrying on for the last 30 years and he would suffer greater hardship in case the release application is allowed. The prescribed authority by judgment dated 19-2-1979 allowed the release application. The prescribed authority held that the need of the petitioner was bona fide and that greater hardship would be caused to him in case the release application is not allowed. The judgment dated 19-2-1979 was challenged in appeal by the opposite party No. 3 before the District Judge, Saharanpur under Section 22 of the Act. The appeal was allowed by the District Judge, Saharanpur by judgment dated 31st July, 1979. The appellate Court upheld the finding of the prescribed (authority) that the need of the petitioner was bona fide. The finding in regard to the hardship was, however, reversed by the appellate Court and it came to the conclusion that the opposite party No. 3 would suffer greater hardship in case the application for release is allowed. The appellate Court upheld the finding of the prescribed (authority) that the need of the petitioner was bona fide. The finding in regard to the hardship was, however, reversed by the appellate Court and it came to the conclusion that the opposite party No. 3 would suffer greater hardship in case the application for release is allowed. With these findings, as I have already observed above, the appeal was allowed. The petitioner landlord has now challenged the order of the District Judge dated 31-7-1979 by means of the present petition. 3. Learned counsel for the petitioner has raised two contentions before me. His first contention is that the finding recorded by the appellate Court that greater hardship will be caused to the opposite party No. 3 tenant in case the release application is allowed is vitiated in law as the case of the petitioner-landlord has not been considered at all. The finding of the prescribed authority in regard to hardship which would be caused to the petitioner has not been reversed. The second submission of the learned counsel is that while considering hardship of the opposite party No. 3 tenant, the appellate Court has not considered a most material fact, namely, that prior to the filing of the application for release the opposite party No. 3 got another building released for business purposes which after release the tenant sold the property and as such the finding in regard to hardship in favour of the opposite party No. 3 is also vitiated in law. The third submission of the learned counsel is that the findings recorded in the earlier proceedings under Section 3 of the U.P. Act 3 of 1947 could not operate as res judicata as the circumstances of the case completely changed and the view to the contrary taken by the appellate Court in this regard is also manifestly erroneous. 4. Both the prescribed authority as well as the appellate Court have recorded a finding to the effect that the need of the petitioner-landlord is bona fide and genuine. 4. Both the prescribed authority as well as the appellate Court have recorded a finding to the effect that the need of the petitioner-landlord is bona fide and genuine. The relevant proviso to Section 21 of the Act is as follows:- "Provided also that the prescribed authority shall, except in cases provided for in the Explanation take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed." 5. In view of this proviso, the hardship both of the landlord as well as of the tenant has to be separately considered and then the Court has to determine as to whose hardship would be more. The proviso, therefore, clearly contemplates that the facts and circumstances in relation to the hardship of the landlord has also to be considered before the finding is recorded in regard to the effect of this proviso. 6. I have examined the judgment of the Appellate Court in this case. In the entire judgment the circumstances considered by the District Judge in regard to hardship are only those which related to the opposite party No. 3, tenant. No circumstances or facts have been considered by the District Judge which related to the petitioner-landlord. The prescribed authority had categorically found that in case the accommodation in dispute is not released for the purposes of carrying on business by the petitioner, then the family of the petitioner was likely to die because of hunger, namely, that greater hardship would be caused to the petitioner landlord. This finding has not been reversed at all by the District Judge. In view of the above, I am of the opinion that the finding in regard to hardship recorded by the District Judge is vitiated in law as the District Judge has not considered at all the facts and circumstances in relation to hardship which was likely to be caused to the petitioner-landlord. This submission, therefore, of the learned counsel for the petitioner is well founded. 7. This submission, therefore, of the learned counsel for the petitioner is well founded. 7. In regard to the second submission also the prescribed authority while considering the hardship had categorically relied upon the circumstances that the opposite party No. 3 had, in fact, got vacated an accommodation for business purposes from Sardar Raja Singh and thereafter in 1974 the said building was sold. This fact was a material fact also which would throw light on the question of hardship. The District Judge has completely ignored to consider the effect of this material fact. The finding, therefore, in regard to hardship is also vitiated because of this reason. The second submission of the learned counsel for the petitioner, therefore, also has substance. 8. In regard to the third submission, I am in agreement with the District Judge that the general principles of res judicata would apply to these proceedings. But the view taken by the District Judge on the facts and circumstances of this case that the decision of the High Court dated 16th December, 1974 : (reported in 1975 All LJ 217) would operate as res judicata on the question that the petitioner having retired he bona fide required the accommodation in question is a view manifestly erroneous. 9. Admittedly the need of the petitioner landlord was not considered in the earlier proceedings, on the basis of the retirement of the petitioner. The only ground on which the petitioner could have been debarred from filing the present petition is on principle laid down in Section 11, Explanation (IV) of Civil P. C. which is as follows: "Any matter which might and ought to have been made ground of defence or attack in such former suit, shall be deemed to have a matter directly and substantially in issue in such suit." 10. The application under Section 3 of U. P. Act 3 of 1947 was filed much prior to the date of retirement of the petitioner on 17th July, 1973. In fact, the application for permission was granted by the Rent Control and Eviction Officer on 1-11-1969. This permission was reversed by the Commissioner on 27th October, 1970. On a representation made to the State Government the petitioner under Section 7 (f) of the old Act was allowed on 7-12-1971. In fact, the application for permission was granted by the Rent Control and Eviction Officer on 1-11-1969. This permission was reversed by the Commissioner on 27th October, 1970. On a representation made to the State Government the petitioner under Section 7 (f) of the old Act was allowed on 7-12-1971. Against the said order dated 7-12-1971 earlier petition had been filed which was decided on 16th December, 1974: (reported in 1975 All LJ 217). In the application which was filed under Section 3 of the Act prior to 1969 the petitioner could not have set up the need of house on the basis of retirement which took place on 16th July, 1973. His application ultimately having been allowed by the State Govt, it was not necessary for him to have brought the fact of his retirement to the notice of High Court. The earlier petition had been filed by the opposite party No. 3. In the circumstances, it is not a case where the petitioner might and ought to have made the ground of retirement as a ground for seeking permission under Section 3 of the old Act. The principle laid down in Explanation IV to Section 11, Civil P. C. was, therefore, not applicable at all. 11. In the matters relating to proceedings for getting the property vacated on the ground of bona fide need, time is an important factor. By the passage of time the ages increase, the needs change and therefore, the circumstances also change. This principle has been recognised in Rule 18 of the Rules framed under the U. P. Act XIII of 1972. Rule 18 contemplates that where an application of the landlord against a tenant under Section 3 of the old Act is allowed or rejected, he cannot make a similar application again within a period of six months from the said decision and in case an application is made within six months, the findings recorded in the earlier proceedings would be conclusive. Under Rule 18 therefore, the landlord is permitted to move an application after six months and thereafter he is also entitled to obtain a decision of a competent Court on the need set up by him. The earlier decision has not to be conclusive against him. If circumstances change, the landlord cannot be debarred from seeking relief from a Court merely because the need set up earlier had not been accepted. The earlier decision has not to be conclusive against him. If circumstances change, the landlord cannot be debarred from seeking relief from a Court merely because the need set up earlier had not been accepted. The application in the instant case was made in 1978, on the ground that the petitioner had retired, while the earlier application was ultimately decided by the High Court on 16th December, 1974: (reported in 1975 All LJ 217) on a different ground. In the circumstances, it cannot be said that the findings in the earlier case would operate as res judicata in the present petition. If the ground taken earlier was the same as in the present proceedings and there was no change of circumstances the findings in the earlier case would have operated as res judicata in the present proceedings. Such is not the case here, in the circumstances, the view to the contrary, taken by the learned District Judge is manifestly erroneous. 12. In the result, the petition is allowed. The order dated 31-7-1979 is quashed and the case is remanded to the District Judge, Saharanpur to decide the appeal afresh in accordance with law in the light of the observations made by me above. Parties are directed to bear their own costs.