JUDGMENT Hon’ble S.U. Khan, J.—This is landlord’s writ petition arising out of eviction/ release proceedings initiated by him against tenant respondents No. 2 to 4, Smt. Ram Rati and others on the ground of bona fide need under Section 21 of U.P. Act No. 13 of 1972 in the form of P.A Case No. 14 of 1988. Prescribed authority, Gorakhpur through judgment and order dated 17.5.1991, allowed the release application. Against the said judgment and order, tenants respondents filed Misc. Civil Appeal No. 210 of 1991. Additional District Judge/ Special Judge, Gorakhpur through judgment and order dated 18.1.1993, allowed the appeal, set-aside the judgment and order passed by the prescribed authority and dismissed the release application hence this writ petition by the landlord. 2. Accommodation in dispute is double storied having four small rooms and four verandahs on the ground floor and one room and a verandah on the first floor. House in dispute is situate in Hazaripur, Gorakhpur rent of which is Rs. 8/- per month. The tenancy is continuing for about last 75 years (since about 1930). 3. Landlord pleaded that he had three sons and two of them were to be married soon. Landlord further pleaded that he intended to establish two of his sons in the business from the accommodation in dispute for which he would convert the verandah on the ground floor into two shops and rest of the portion of ground floor would be utilized for residential purpose by one son after marriage and the first floor portion would be utilized for the residential purpose by his other son after marriage. 4. As far as accommodation in possession of landlord is concerned, he pleaded that he had only three rooms in his occupation. Tenant countered the said plea and stated that landlord had five rooms in his possession. Landlord had also pleaded that tenant was posted at Lucknow hence he was residing there along with his entire family and was keeping the house in dispute locked. Prescribed authority found all the allegations of the landlord to be correct and allowed the release application. 5. Tenant had also asserted that by virtue of clause (ii) of third proviso to Section 21 of the Act, residential building could not be released for occupation for business purposes. Prescribed authority found all the allegations of the landlord to be correct and allowed the release application. 5. Tenant had also asserted that by virtue of clause (ii) of third proviso to Section 21 of the Act, residential building could not be released for occupation for business purposes. Even the appellate Court which decided the matter in favour of the tenant held that by virtue of the authority of this Court in Ram Kali v. A.D.J., 1985(2) ARC 385 residential accommodation could be released for residential and commercial needs hence release application seeking release on both the grounds i.e. residential as well as commercial need was quite maintainable. 6. Appellate Court held that two sons of the landlord whose need for commercial purposes was pleaded by the landlord, were already carrying on business from other shops of which they were tenants. In this regard an affidavit of Shambhoo Nath one of the tenants was filed before the appellate Court in which it was stated that one of the sons of landlord i.e. Vijay Kumar was carrying on business of selling books and stationeries from the shop in Mohalla Humayunpur. Boundaries of the shops were also given. Owner landlord of the said shop Gyaneshwar filed his own affidavit in which he stated that in the said shop one Sanjay Gupta was tenant and not son of the landlord petitioner. Appellate Court without saying anything regarding the said affidavit held that son of the landlord was carrying on business from another shop in which he was tenant. This finding is clearly erroneous. Apart from it, even if son of the landlord is doing business from a tenanted shop it is no ground to reject the release application [vide G.K. Devi v. Ghanshyam, AIR 2000 SC 656 ]. 7. Appellate Court also took into consideration the facts that landlord had initiated several eviction proceedings against the tenant and he had failed hence his need could not be said to be bona fide and release application was therefore mala fide. This is no ground to hold the release application to be mala fide. Earlier release proceedings were initiated in 1960 when children of the landlord were quite young, rather infants. 8. This is no ground to hold the release application to be mala fide. Earlier release proceedings were initiated in 1960 when children of the landlord were quite young, rather infants. 8. In respect of plea of the landlord that tenant Shambhoo Nath was posted at Lucknow and was keeping the house in dispute locked, appellate Court held that in the year 1992 during pendency of appeal tenant had been transferred from Lucknow to Gorakhpur where accommodation in dispute is situate. Basically the position is to be seen at the time of filing of the release application. In the year 1988, when release application was filed, one of the tenant Shambhoo Nath who is a Government employee was posted at Lucknow and his mother respondent No. 3 was residing with him and the third tenant Bhola Nath i.e. real brother of Shambhoo Nath was residing in ancestral house at Sonpur, Bihar along with his family. This clearly demonstrates that when release application was filed house in dispute was not in the use of the tenants and they would not have suffered least hardship in case of eviction. If after about four years of filing release application and during pendency of appeal Shambhoo Nath respondent No. 4 was transferred from Lucknow to Gorakhpur, it was no ground to hold otherwise. It is quite possible that just to strengthen his case he got himself transferred from Lucknow to Gorakhpur. In any case if in the year 1992, respondent No. 4 Shambhoo Nath was transferred from Lucknow to Gorakhpur then since 1992 till date he may have been transferred to several other places. 9. As far as the question of extent of accommodation in possession of the landlord is concerned, the prescribed authority held that there were only three rooms in possession of the landlord while appellate Court held that landlord had five rooms in his possession. In this regard finding of the appellate Court appears to be correct. Trial Court held that in respect of the said issue only affidavits of both the parties were filed and tenant had not disclosed his source of information regarding number of rooms in possession of the landlord. Trial Court further held that there was no other evidence on record. 10. Trial Court was wrong on both the accounts. Earlier also litigation had taken place in between the parties. Trial Court further held that there was no other evidence on record. 10. Trial Court was wrong on both the accounts. Earlier also litigation had taken place in between the parties. The matter had come up before Commissioner in the form of Revision No, 13 and R.C. of 1965-66. Both the proceedings arose out of release application filed by the landlord. In the said judgment, it was mentioned that Inspector report dated 16.6.1965 showed that accommodation in possession of the landlord in Mohalla Jafra Bazaar consisted of two big living rooms, three small rooms, five verandahs and two courtyards, one big and one small. The prescribed authority referred to the said judgment in respect of some other matter. Accordingly the only finding of the lower appellate Court with which I agree is that landlord has got five rooms in his possession and not three rooms as alleged by him. However this fact will only mitigate his need but not completely wipe out or satisfy the same. Married people deserve separate and more accommodation. Moreover in the recent times concept of joint family is also weakening and more and more married couple desire to live separately. In any case gravity of need lies in the realm of comparative hardship. Tenants were keeping the accommodation in dispute locked at the time of filing of the release application and today also position appears to be the same (during arguments no one appeared for tenants respondents to show present place of posting of tenant Shambhoo Nath respondent No. 4). Long possession of the tenant was one of the factors, which weighed with the appellate Court. 11. The main attraction of the tenant to retain the possession of the house in dispute appears to be the rent of Rs. 8/- per month, which is virtually as well as actually no rent. Absence of any provision for fixing of reasonable rent and periodical enhancement of the same under U.P. Rent Control Act is the main basis of litigation in between the landlords and tenants. Respondent No. 4 being Government employee could very well either purchase or construct a house. In any case he could get another house either on good rent or through Government (he being government employee). Respondent No. 4 being Government employee could very well either purchase or construct a house. In any case he could get another house either on good rent or through Government (he being government employee). The Supreme Court in Siddalingma v. M. Shenoy, AIR 2001 SC 2896 , has held that Rent Control Act is basically meant for protection of the tenant and provision of release on the ground of bona fide need is the only provision which treats the landlord with some sympathy. In another authority in B. C. Bhutada v. G. R.Mundada, AIR 2003 SC 2713 , it has been held that gravity of need lies in the realm of comparative hardship. Tenant will not face least hardship in case of eviction. In view of this even if it is assumed for the sake of argument that need of the landlord was not very grave, still release application deserves to be allowed. 12. Accordingly writ petition is allowed. Judgment and order passed by the appellate Court is set-aside and judgment and order passed by the prescribed authority is restored. 13. As no one has appeared for tenant respondent hence before issuing writ of possession/Parvana Dakhal on the execution application which may be filed by the landlord under Section 23 of the Act in pursuance of this judgment, prescribed authority shall ensure service of notice upon tenants. Since the date of service of notice, tenants shall be liable to pay Rs. 1000/- per month rent/ damages to the landlord petitioner till the date of actual vacation. Petition Allowed. ———