JUDGMENT S.C. Mathur, J. - This is tenant's petition directed against order of eviction passed against him by the Appellate Court in proceeding under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (No. 13 of 1972), for short Act. The dispute in the petition pertains to Shop No. 72, situate at Mohalla Nai Bazar, Qasba Nanpara, District Bahraich. 2. The application under Section 21 was moved by four persons, namely, Mohammad Yusuf, Mohammad Yunus, Mohammad Masood and Abdul Jabbar, Opposite Parties 1 to 4. Opposite Party No. 1 is the father of Opposite Parties 2 to 4. It was stated in the application that Mohammad Yusuf was previously the owner of the shop indispute but in 1975 he made an oral gift thereof in favour of his three sons and the shops in question was required for the watch repairing business of his first two sons, namely, Mohammad Yunus and Mohammad Masood, which business, in the absence of any shop with the landlords, was being done on the foot-path of a public road. Regarding the remaining son Abdul Jabbar it was stated that he was doing nothing. The family of the landlords was alleged to be comprising in all of thirteen members and the income for feeding these thirteen members was stated to be derived from one acre agricultural land belonging to Opposite Party No. 1. This agricultural land was alleged to be affected by floods and it was stated to be capable of yielding only one crop in a year. Income from the land was alleged to be meagre to maintain the large family of thirteen members. Apart from this agricultural land and the shop in dispute, the landlord opposite parties admitted ownership of a shop which was stated to be mortgaged with possession to Sabir against a loan of Rs. 3000.00 advanced by him. This shop was disclosed to be situate at Mohalla, Qila, Qasba Nanpara, District Bahraich and its measurements were given as 10' X 6'. The tenant-petitioner was stated to be well to do person having several sources of income. On this basis it was pleaded that he will not suffer any hardship if he was required to vacate the shop in dispute in favour of the landlord opposite parties. However, the alleged several sources of income were not specified. 3. The tenant-petitioner was stated to be well to do person having several sources of income. On this basis it was pleaded that he will not suffer any hardship if he was required to vacate the shop in dispute in favour of the landlord opposite parties. However, the alleged several sources of income were not specified. 3. The above application was contested by the tenant-petitioner who filed his written-statement, Annexure-4, asserting therein that he had been a tenant of the shop in dispute for the last more than thirty years and had been carrying on the business of repairing watches and radios for the same period. It was pleaded that the petitioner's family was large and income from the shop was the only source of livelihood. The petitioner's business in the shop in dispute was alleged to have earned a good will. The need set up by the landlord opposite parties was stated to be false and it was asserted that they had suppressed properties and business owned by them. According to the petitioner the landlord opposite parties owned and possessed the following properties and businesses :- 1. 300 bighas agricultural land in Mauza Bisram Gaon yielding two crops in a year ; 2. 100 bighas land situate in Mauza Bhateta ; 3. 7-8 pucca and kachcha houses in Mohalla Chikwa Tola and Ghasiyari Tola ; 4. Godown and house situate in Mohalla Chamaran Tola; Qasba Nanpara ; 5. Shop situate at Chowk Bazar, Nanpara ; 6. Phulwari and Dheki situate at Dak Bangla, Qasba Nanpara ; 7. Business in hides, bones and horne, and 8. Forest contracts. 4. The business of hides, bones and horns was alleged to be carried on a large scale extending to far off places like Bombay, Calcutta and Kanpur. It was pleaded that Opposite Party No. 4 Abdul Jabbar was permanently residing at Bombay in connection with this very business. Income of the landlord-opposite parties was alleged to range between rupees fifteen to twenty thousands per month The application was stated to have been moved with mala fide intention of letting out the shop on higher rent. It was pleaded that Opposite Party No. 4 Abdul Jabbar was permanently residing at Bombay in connection with this very business. Income of the landlord-opposite parties was alleged to range between rupees fifteen to twenty thousands per month The application was stated to have been moved with mala fide intention of letting out the shop on higher rent. In this connection it was pointed out that earlier Opposite Party No. 1 had filed application under Section 3 of the Old Act, [U.P. (Temporary) Control of Kent and Eviction Act, 1947 [U.P. Act No. 3 of 1947], seeking permission to file suit for ejectment against the petitioner but the same was rejected by the Rent Control and Eviction Officer, Bahraich, through his order dated 25th June, 1971, Annexure 1, which was upheld in revision by the Additional Commissioner, Faizabad Division, Faizabad, through his order dated 12th July, 1972. In oral arguments before me, the oral gift of the shop in dispute by Opposite Party No. 1 in favour of Opposite Parties 2 to 4 was also assailed as mala fide. 5. In support of their respective pleas the petitioner and opposite parties filed affidavit evidence documents. In order to substantiate his plea that opposite parties owned several properties, the petitioner filed copy of plaint of Suit No. 152 of 1979. Annexure-12, instituted by opposite party No. 1's brother Mohd. Naeem against opposite party No. 1 and his brothers Abdul Kareem, Abdul Bari, Mohammad Ahmad and his sister's son Mohammed Kareem's son Abdul Bari, and copy of the written-statement filed in that suit by Opposite Party No. 1. In this suit Mohammad Naeem had claimed that the properties mentioned in list 'Aa' attached to the plaint were jointly by the parties but in 1964 a family settlement was arrived at in which the properties mentioned in list 'Ba' fell to the share of the plaintiff exclusively and the defendants had no right or share therein. On this basis he claimed a decree of declaration that he was the exclusive owner of the properties mentioned in list 'Ba'. Alternatively he prayed for a decree for partition in case the family settlement was not established, list 'Aa' comprises of 38 items of properties while list 'Ba' comprises of 5 items, the last item being stocks of bonus valued ai Rs. 20,000.00. 6. Alternatively he prayed for a decree for partition in case the family settlement was not established, list 'Aa' comprises of 38 items of properties while list 'Ba' comprises of 5 items, the last item being stocks of bonus valued ai Rs. 20,000.00. 6. In this written-statement, Annexure-13, Opposite Party No. 1 admitted joint ownership of only some of the properties mentioned in list 'Aa'- Regarding the hides and bones business he stated that originally the said business was the sole, proprietorship of Zia Ullah, father of plaintiff and Defendants 1 to 4 which ended with his death in 1964 and thereafter the said business was carried on by the heirs of Sri Zia Ullah in partnership which also ended in 1972. 7. The Prescribed Authority in his order dated 20th November, 1985 observed that he plaint and written-statement of Suit No. 152 of 1979 did show that Opposite Party No. 1 and his brothers owned several houses, shops and godown but these properties were involved in litigation and the petitioner had not been also to point out any shop which may be in the actual occupation of the opposite parties where the watch repairing business may be done by Opposite Parties 2 and 3. He accepted the landlords plea that the business in hides, bones and horns was no longer being carried on by the opposite parties. He relied upon papers Ga-47 and Ga-48 for accepting the landlord' plea that opposite parties Mohammad Yunus and Mohammad Masood were doing watch repairing business on the foot-path of a public road. With these findings he came the conclusion that the landlord' need for the shop in question was bona fide. 8. After recording finding of bona fide requirement in favour of the landlords, the Prescribed Authority proceeded to compare the hardship which either party would suffer in the event of the application being decided one way or the other. While doing so, the Prescribed Authority observed that it was true that the properties were involved in litigation but the landlords must be deriving some income there from, including the agricultural land. As against this, the Prescribed Authority states, it was the admitted position between the parties that the petitioner did not have any other source of livelihood and consequently if the landlords' application was allowed he would face starvation. As against this, the Prescribed Authority states, it was the admitted position between the parties that the petitioner did not have any other source of livelihood and consequently if the landlords' application was allowed he would face starvation. On this basis he came to the conclusion that hardship to the petitioner would be greater. He took note of the fact that the petitioner had been carrying on business in the shop in dispute for the last more than thirty years. He referred to Clauses (a) and (c) of Rule 16(2) in support of his conclusions. In the result the landlords' application for release was rejected. 9. Against the above order of the Prescribed Authority, landlords-Opposite Parties 1 to 4, preferred appeal before the learned District Judge, Bahraich, which came up for disposal before the IIIrd Additional District Judge, Bahraich, who by his order dated 8th May, 1986, Annexure-14, confirmed the Prescribed Authority's finding of bona fide requirement but upset the finding of comparative hardship. According to him the hardship to the landlords was greater. With this finding he allowed the landlords' appeal as well as their application under Section 21 and directed release of the disputed shop in favour of the landlords. In directing release of the shop in favour of the landlords, the learned Judge took note of the application dated 7th May, 1985 filed on behalf of the landlords offering the mortgaged shop to the petitioner, after redeeming the mortgage, as alternative accommodation. The order of release has landed the tenant in this Court. 10. Before the appellant Court the petitioner made an application, Annexure-7 through which he sought permission to assail the finding of the Prescribed Authority on the landlords' plea of bona fide requirement. In Paragraph 14 of the petition the petitioner has asserted that the application was allowed by the learned Judge. No counter-affidavit has been filed on behalf of Opposite Parties 1 to 4. It, therefore, stands established that the petitioner was allowed by the learned Judge to assail the finding of the Prescribed Authority on the question of landlords' bona fide requirement of the shop in dispute. 11. In Paragraphs 14 to 19 and 26 the petitioner has pointed out that both the parries filed additional evidence before the Appellate Court. 12. The judgment of the learned Judge has been assailed by the learned Counsel for the petitioner on the following grounds:- 1. 11. In Paragraphs 14 to 19 and 26 the petitioner has pointed out that both the parries filed additional evidence before the Appellate Court. 12. The judgment of the learned Judge has been assailed by the learned Counsel for the petitioner on the following grounds:- 1. Even though the learned Judge allowed the petitioner to assail the finding of the Prescribed Authority on the landlords' plea of bona fide requirement for the shop in dispute and arguments were advanced by the parties Counsel to challenged the findings, the learned Judge did not consider the petitioner's submission under the erroneous plea that no cross-appeal or cross-objection had been filed on behalf of the petitioner; 2. The learned Judge has failed to consider the additional evidence filed before him which proved that the landlords had enough agricultural land and that the mortgage of shop in favour of Sabir Husain was fictitious and mala fide as Sabir Husain was none else out Opposite Party No. 1's own son-in-law ; 3. No copy of the application dated 7th May, 1986, which contained landlords' offer alternative accommodation was served either upon the petitioner or on his Counsel and, therefore, the same could not have been considered by the learned Judge ; 4. the finding that Opposite Parties 2 and 3 are doing watch repairing business on the foot-path of public road is incorrect; in fact the landlords are doing business in hides, bones and horns ; 5. the learned Judge has wrongly observed that the petitioner had not denied the landlords' assertion that Opposite Parties 2 and 3 were doing watch repairing business on the foot-path of a public road ; in fact the petitioner had denied the said plea ; 6. opposite parties themselves have stated that the mortgaged shop is not fit for watch repairing business, as such, the said shop is not acceptable to the petitioner ; and 7. the findings of the learned Judge on bona fide requirement and comparative hardship are manifestly erroneous. Grounds 1, 2, 4 and 5 : 13. All those grounds can be taken up together. In his impugned Judgment the learned Judge has indeed observed that against the finding bona fide requirement recorded in favour of the landlords, the tenant has not filed any cross-appeal and cross-objection and, therefore, the said finding has become final. Grounds 1, 2, 4 and 5 : 13. All those grounds can be taken up together. In his impugned Judgment the learned Judge has indeed observed that against the finding bona fide requirement recorded in favour of the landlords, the tenant has not filed any cross-appeal and cross-objection and, therefore, the said finding has become final. This observation is certainly wrong inasmuch as the petitioner's application, Annexure-7, was in the native of cross-objection. Through this application the petitioner sought permission to challenge the said finding. In Paragraph 14 of the writ petition the petitioner has stated that this application had been allowed. In Paragraph 25 he has served that arguments were also advanced on his behalf against the said finding. The opposite parties have not denied these allegations. After following this application and after hearing arguments on the point, it was not open to the learned Judge to say that the finding on bona fide requirement had become final. If the learned Judge was of the opinion that the application a copy of which has been filed as Annexure-7, was not sufficient to constitute cross-objection inasmuch as the grounds of challenge had not been raised, he could have directed the petitioner to make the application more specific. 14. However, a perusal of the judgment of the learned Judge shows that despite the above observation he proceeded to consider the landlords' claim of bona fide requirement. He observed that the petitioner had not specifically denied in his written-statement the Opposite Parties 2 and 3 were doing watch repairing business on the foot-path of a public road and consequently this plea of the landlords will have to be treated as admitted and once it is admitted that Opposite Parties 2 and 3 are doing business on foot-path it will have to be held that they are so eager to do business and their need is so urgent that they have already started the business on foot-path, in the absence of availability of a shop. The learned Judge goes on to observe that if the business in question was not required to be done for earning livelihood, Opposite Parties 2 and 3 would have started it on the foot-path. According to him doing business on a foot-path showed that the income from agricultural land was not sufficient to maintain the family. This does amount to consideration of landlords' plea of bona fide requirement. According to him doing business on a foot-path showed that the income from agricultural land was not sufficient to maintain the family. This does amount to consideration of landlords' plea of bona fide requirement. How for this finding can be sustained will be seen hereafter. 15. The learned Counsel for the petitioner submits that the observation of the learned Judge that the petitioner did not deny the landlords' allegation that Opposite Parties 2 and 3 were doing business on the foot-path is incorrect. According to him Paragraph 6 of the application, Annexure-3, which contained the allegation, had been denied in the written-statement, Annexure-4. In Paragraph 6 the landlords stated that Opposite Parties 2 and 3 were doing the business of watch repairing on the foot-path, but in the absence of a permanent shop, income from the business was meagre. The reply to Paragraph 6 is contained in Paragraph 6 of the written-statement thus :- "Galat Hai, Inkar Hai, Mulahza Ho Ujrat Majeed" (It is wrong, It is denied, please see additional pleas). In the additional pleas nothing has been said regarding the business alleged by the landlords to be carried on the foot-path. This, in my opinion, does not constitute specific denial of the landlords' allegation. The learned Judge, therefore, cannot be said to have committed manifest error in observing that the petitioner have not denied the landlords allegation regarding the business done on the foot-path. 16. Earlier the learned Judge considered the petitioner's plea that sufficient agricultural land was available to the landlords and observed that the khetauni extracts showed that only 1.613 Decimal land was recorded in the name of Opposite Party No. 1 and he rest was recorded in the names of others and the evidence on record did not establish that all the persons whose names were entered in the khetaunis constituted joint family. The learned Counsel has assailed this finding by submitting that the additional evidence filed by the petitioner before the Appellate Court has not been considered. In paragraph 15 of the petition the petitioner has mentioned that certified khetauni extracts were filed at the appellate stage. Copies of these khetauni extracts have been filed an Annexures 15, 16, 17. Annexure 15 records 1.613 decimal land in the name of Opposite Party No. 2 ; and Annexure 17, 15.766 again the name of Opposite Party No. 2. In paragraph 15 of the petition the petitioner has mentioned that certified khetauni extracts were filed at the appellate stage. Copies of these khetauni extracts have been filed an Annexures 15, 16, 17. Annexure 15 records 1.613 decimal land in the name of Opposite Party No. 2 ; and Annexure 17, 15.766 again the name of Opposite Party No. 2. The total area of the land recorded in the names of Opposite Parties 1 and 2 thus come to 21.196. The allegations made in the application under Section 21 indicate that Opposite Parties 1 to 4 constituted joint family. Therefore, the land recorded in the name of Opposite Party No. 2 could not be excluded from consideration. Opposite Parties 1 to 4 have not denied that these khetauni extracts had been brought on record. In Paragraph 26 the petitioner has stated that one of the three extracts was filed before the Prescribed Authority and the other two before the learned District Judge. It is only Annexure 15 which records the area of land as 1.613 referred to in the Judgment of the learned Judge. The petitioner's assertion, therefore, that the learned Judge did not considered the additional evidence filed before him appears to be correct. As already stated Opposite parties 1 to 4 have not filed any counter-affidavit in this Court. Therefore, the figure of 1.613 mentioned in the judgment of the learned Judge has only one explanation, the same being that the learned Judge considered Annexure 15 only and ignored Annexure 16 and 17. The effect of this omission will be considered hereinafter. 17. On behalf of the petitioner it was asserted that Opposite Party No. 1 was doing business in hides and bones in which his sons were also involved. On this basis it was pleaded that the landlords' plea that family income was insufficient to maintain the family was incorrect. The landlords did not dispute that Opposite Party No. 1 was previously doing this business but it was pleaded that after 1977 this business had been stopped. The learned Judge has preferred to accept the landlord's version because the petitioner did not file any licence in the name of the landlords. 18. The petitioner does not dispute that he did not file any licence to substantiate his plea. The learned Judge has preferred to accept the landlord's version because the petitioner did not file any licence in the name of the landlords. 18. The petitioner does not dispute that he did not file any licence to substantiate his plea. The learned Counsel, however, submits that the learned Judge did not consider the affidavit of Maseehat Khan, Annexure 18, in which he stated that Opposite Party No. 4 Abdul Jabbar was residing at Govindi. Bombay, for the last twenty years in connection with the business of hides, bones and horns that his business was fetching a profit of thousands per month. The deponent of the affidavit had stated that he is an old resident of Nanpara, Bahraich, and knows the parties and is residing in Bombay for the last twenty years. He has claimed that he has been meeting Abdul Jabbar in Bombay. In paragraph 27 of the petition it has been stated that the affidavit of Maseehat Khan was not controverted by the landlords. Since there is no counter-affidavit on behalf of the landlords, it will have to be accepted that the affidavit of Maseehat Khan was not controverted. But that is not enough to challenge the finding of the learned Judge. The petitioner will have to show that the reasoning adopted by the court below is erroneous. The learned Judge could very well refuse to entertain the plea in the absence of documentary evidence when it appears to it that the allegation, if correct, could be proved through documentary evidence. It is not the case of the petitioner that no licence was required for doing business in hides bones and horns. A Court or Tribunal is not bound to accept every statement of fact made on affidavit simply because no counter affidavit has been filed to controvert the fact. In my opinion, therefore, the finding of learned Judge that the landlords are no longer engaged in the business of hides, bones and horns does not suffer from any apparent error. 19. I have made the above observations only to meet the arguments advanced on behalf of the petitioner. I should not be understood as confirming the finding of the leaned Judge so as to deprive the petitioner of the right of arguing the matter again when it goes back to the court below in pursuance of this judgment. 19. I have made the above observations only to meet the arguments advanced on behalf of the petitioner. I should not be understood as confirming the finding of the leaned Judge so as to deprive the petitioner of the right of arguing the matter again when it goes back to the court below in pursuance of this judgment. It is, therefore, clarified that it will be open to the petitioner to reagitate the point before the court below and the court below will be entitled to record its finding afresh on the plea in question. Grounds 3 and 6 : 20. In recording the finding of comparative hardship in favour of the landlords, the learned Judge has relied upon the offer of alternative accommodation made by the landlords through their application dated 7th May, 1986. He has observed that the petitioner has not responded to this application and, therefore, he cannot be given any benefit under Rule 16 (2). 21. In paragraph 24 of the petition the petition has stated that copy of the application was not served either upon his counsel The assertion also remains uncontrovertcd. Therefore, it will have to be held that the offer was not brought to the notice of the petitioner. This alone would have vitiated the assessment of comparative hardship if the petitioner had not rejected the offer through paragraph 31 of the petition in which he has stated : "The other shop alleged to be in possession of Mohammad Sabir was not fit for watch repairing work and, as such, the offer made, if any (which is denied) cannot be accepted by the petitioner." The effect of this rejection will be considered hereinafter. Ground No. 7 : 22. Now comes the last question-whether the findings on bona fide requirement and comparative hardship suffer from any manifest error. The findings on these two matters may be recapitulated. On bona fide requirement the material findings recorded by the learned Judge which have not been found to suffer from any error are : (1) Opposite Parties 2 and 3 are carrying on watch repairing business on the foot-path of a public road ; and (2) the landlords are not carrying on business in hides, bones and horns. The findings which have been found to be erroneous is regarding the extent of agricultural land available to the landlords. The findings which have been found to be erroneous is regarding the extent of agricultural land available to the landlords. The finding is erroneous because khetauni extracts Annexures 16 and 17 have been ignored. The question for consideration is whether this omission vitiates the finding on bona fide requirement. In my opinion, in the context of the need set up by the landlords, it does. 23. If the finding of the learned Judge remains, the total area of agricultural land available to the landlords is 1.613. If the areas mentioned in Annexures 16 and 17 is added, the area because 21.196. The difference in the areas is about twenty times. The case of the landlords was that the main source of income for feeding thirteen members of the family was from agriculture and since the total agricultural land available was only about 1 acre the income therefrom we insufficient to sustain the family. In other words the plea was that watch repairing business was necessary in order to augment the family income so that the family could be sustained As a corollary it follows that the said business will not be necessary to done if agricultural income is sufficient to sustain the family. If the petitioner's version is accepted, the landlords have twenty times the land accepted by them. Thus, the landlords' income from agricultural land gets multiplied by twenty times. Apparently there is suppression of areas of 1 and the income therefrom. The landlords have not disclosed the income even from the one acre land which they have admitted to in their possession. Therefore, the area of agricultural land available to the landlords has an important bearing on the finding of bona fide requirement for the shop in question. The determination of that area suffers from the error of non-consideration of Annexures 16 and 17. Accordingly the finding on bona fide requirement itself becomes vitiated. 24. So far as comparison of hardship is concerned, the learned Judge was awayed by the fact that the landlords had made offer of alternative accommodation. The determination of that area suffers from the error of non-consideration of Annexures 16 and 17. Accordingly the finding on bona fide requirement itself becomes vitiated. 24. So far as comparison of hardship is concerned, the learned Judge was awayed by the fact that the landlords had made offer of alternative accommodation. The petitioner has not accepted the alternative shop on the plea that if the same is not sufficient for the landlords who are doing business in repairing watches only it cannot be sufficient for the petitioner who, apart from doing the business of repairing watches, is doing also the business of repairing radios and it was argued by the learned counsel for the petitioner that in the circumstances the petitioner should not have been disturbed from the shop in dispute and the shop offered by the landlords could be occupied by Opposite Parties 2 and 3 if they were really interested in doing business in repairing of watches. The argument of the learned Counsel deserves consideration. 25. In view of the above the writ petition succeeds and the same is hereby allowed. The judgment and order dated 8th May, 1986, Annexure 14, made by the learned IIIrd Additional District Judge, Bahraich, is hereby quashed. The learned Judge shall readmit the appeal to its original number and decide the same afresh taking into account the observations made herein above. The costs of this petition shall be easy.