ORDER S.D. Agarwala, J. - This is a petition under Article 226 of the Constitution of India arising out of proceedings under the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). 2. Abdul Mohi Khan, respondent No. 3, is the landlord of the premises. Shre Krishna Dass, the original petitioner, was the tenant. He died during the pendency of the petition and now his widow Smt. Sarojini Dass has been substituted. 3. The house in dispute is house No. 12/2-D/E, Minto Road, Allahabad. In respect of this very house, the landlord had initially filed an application for release under S. 21 of the Act in the year 1972. This application was rejected by the Prescribed Authority on 15th Jan. 1974. It was held that the need of the landlord was not bona fide and genuine and hence the application was rejected. Against the order of the Prescribed Authority, an appeal was filed by the landlord but that was not pursued any further and the appeal was dismissed in default. Subsequently, in July 1975, another application for release was filed under S. 21 of the Act. This application was rejected by the Prescribed Authority on 19th Oct. 1979. Against the order of the Prescribed Authority, the landlord filed an appeal. This appeal was allowed by the 1st Additional District and Sessions Judge, Allahabad, by his judgment dated 28th April, 1980. The tenant has challenged the judgment dated 28th April, 1980, by means of the present petition. 4. Learned counsel for the petitioner has raised three contentions before me. His first contention is that the grounds on which the release application has been allowed by the appellate court was the same which was set up earlier in the earlier release application and, as such, the decision given in the earlier application operated as res judicata in the present proceedings and, consequently, the judgment is vitiated in law. The second submission of the learned counsel is that the finding in regard to bona fide need recorded by the lower appellate court is also vitiated in law for the reason that material circumstances have not been considered by the Appellate court while recording a finding that the landlord's need was bona fide and genuine. The second submission of the learned counsel is that the finding in regard to bona fide need recorded by the lower appellate court is also vitiated in law for the reason that material circumstances have not been considered by the Appellate court while recording a finding that the landlord's need was bona fide and genuine. The third submission of the learned counsel is that it was mandatory for the appellate authority to have considered the applicability of R. 16(l)(d) of the Rules framed under the Act and since the appellate court has not considered that question, the determination is vitiated in law. 5. In so far as the first question is concerned, the earlier application moved in 1972 is Annexure T to the supplementary affidavit dated 24th July, 1980. In this application, in paragraph 5, it has been stated that the landlord is a welfare officer in the Geep Flashlight, Allahabad, and is drawing Rs. 500/- as his salary and it is very difficult for him to pay Rs. 150/- as rent out of the total income of Rs. 501/- causing great hardship to him. This allegation was pleaded on the basis that the landlord has to take another accommodation on rent at the rate of Rs. 150/- per mensem. 6. The order of the Prescribed Authority dated 15th Jan. 1974, is attached as Annexure 2 to the said supplementary affidavit. I have examined the order. From the order, it is clear that the Prescribed Authority did not adjudicate on the question as to whether the landlord was in a position to pay Rs. 150/- as rent of the premises which he was occupying and as to whether that is causing hardship to the landlord. In the circumstances, it is apparent that this question was not decided in the first proceedings. A decision operates as res judicata. Since there is no decision in the earlier proceedings in regard to the question of the financial stringency of the landlord, the question of res judicata does not arise at all. In this view of the matter, so far as the first submission of the learned counsel is concerned, I do not find any merit in the same. 7. Since there is no decision in the earlier proceedings in regard to the question of the financial stringency of the landlord, the question of res judicata does not arise at all. In this view of the matter, so far as the first submission of the learned counsel is concerned, I do not find any merit in the same. 7. In regard to the second submission made by the learned counsel, the material circumstance, which the learned counsel has pointed out and which is alleged to have been ignored by the appellate court is that the appellant is a co-owner of a large set of properties, mentioned in the waqf deed and that the landlord receives income from that property. Admittedly, the position is, as has been found by the court below also, that 20-25 outhouses have been let out on rent as well as one garage. It is, on the basis of the income from these outhouses and garage, that it is alleged that this income was sufficient for mitigating the hardship to the landlord and since this income has not been considered hence the finding in regard to bona fide need is vitiated. Admittedly, the landlord is only the owner of one-fourth share in the alleged properties, which is the subject matter of the waqf deed. Even if this income is taken to be the income coming into the hands of the landlord it would be such a meagre income that it was not a material circumstance, which could vitiate the finding recorded by the lower appellate court. The lower appellate court, on a consideration of the material evidence on the record, came to the conclusion that the landlord is under financial strains and cannot afford to pay Rs. 150/- per month as rent. This clearly is a finding of fact and I do not find it to be vitiated in any manner in law. In the circumstances, so far as the second submission of the learned counsel is concerned, in my opinion that submission also is devoid of any force. 8. In regard to the third submission, R. 16(l)(d) of the Rules framed under the Act lays down as under : "16(l)(d). In the circumstances, so far as the second submission of the learned counsel is concerned, in my opinion that submission also is devoid of any force. 8. In regard to the third submission, R. 16(l)(d) of the Rules framed under the Act lays down as under : "16(l)(d). Where the tenant's needs would be adequately met by leaving with him a part of the building under tenancy and the landlord's needs would be served by releasing the other part, the Prescribed Authority shall release only the latter part of the building." 9. This sub-clause came up for consideration before the Hon'ble Supreme Court in Smt. Raj Rani Mehrotra v. 2nd Addl. District Judge, 1980 All Rent Cas 311. The Supreme Court laid down that it is the duty of the Court to take into account the applicability of R. 16(1 )(d) of the Rules framed under the Act and it has to consider as to whether the tenant's needs would be adequately met by leaving with him a part of the building under tenancy and the landlord's needs would be served by releasing a part. This decision is fully applicable to the present case. Similar view has been taken in the case of Mohammad Sher Siddiqui v. 3rd Addl. District Judge, 1982 All Rent Cas 305 by a learned single ; Judge of this Court. In the circumstances, it is apparent that the judgment is vitiated, in law, inasmuch as the appellate court has not considered as to whether R. 16(1 )(d) was ; applicable to the facts of the present case or not. 10. Sri S. A. Khan, learned counsel appearing for the respondent landlord, has, however, urged, firstly, that there is sufficient material on the record, in the present case, to establish that the accommodation in dispute is not sufficient even for the landlord and, as such, the question of the applicability of R. 16(1 )(d) would not come into effect at all. He has urged, secondly, that neither any plea was taken in the written statement in regard to this question for any ground was taken in the writ petition in the High Court and, as such, this ground should not be permitted to be taken by the petitioner in this court under Article 226 of the Constitution of India. 11. He has urged, secondly, that neither any plea was taken in the written statement in regard to this question for any ground was taken in the writ petition in the High Court and, as such, this ground should not be permitted to be taken by the petitioner in this court under Article 226 of the Constitution of India. 11. In so far as the first objection is concerned, the learned counsel has attempted to place before me the various paragraphs of the petition and the other relevant documents. In my opinion, the material is not sufficient on the record to examine this question. No doubt, the number of rooms and their areas have been mentioned. The number of members of the family of the landlord as well as the tenant are also found on the record, but there is nothing to establish the actual situation of the rooms as to how they are situate and whether by dividing the accommodation, the landlord and the tenant would be able to live keeping in mind the daily necessities of life. It is, therefore, in my opinion, appropriate that this question be left open to be decided by the lower appellate court after remand, so that the parties may get an opportunity to produce evidence on this question and, thereafter, the court may determine this question appropriately. 12. In regard to the second objection taken by the learned counsel in the case of Smt. Raj Rani Mehrotra v. 2nd Addl. District Judge (1980 All Rent Cas 311) (Supra) the Supreme Court has laid down a proposition of law that the appellate court was bound to consider the applicability of R. 16(l)(d). If the appellate court was bound to consider the applicability of R. 16(l)(d), it was not material circumstance that the plea was not taken or no ground was taken in the petition filed in this court and, as such, in my opinion, the petitioner cannot be shut out from urging this question in the petition filed before this court at the time of hearing of the petition. 13. I may observe here that so far as the question of bona fide need and the comparative hardship is concerned, it is a finding of fact, which is confirmed by me and need not be gone into again, after remand. 14. In the result, the petition is allowed. 13. I may observe here that so far as the question of bona fide need and the comparative hardship is concerned, it is a finding of fact, which is confirmed by me and need not be gone into again, after remand. 14. In the result, the petition is allowed. The order of the 1st Additional District and Sessions Judge dated 28th April, 1980, is hereby quashed and the matter is remanded to the appellate authority with a direction that the appeal may be re-admitted to its original number and the question of the applicability of R. 16(l)(d) decided by the appellate court. Since the matter has been pending for quite some time. The appellate court is directed to decide this matter expeditiously and as far as possible, within three months from today. In the circumstances of the case, the parties are directed to bear their own costs.