JUDGMENT Hon’ble S.U. Khan, J.—Heard learned Counsel for the parties. 2. This is tenant’s writ petition arising out of eviction/release proceedings initiated against him by landlord respondent No. 3- Mohd. Usman on the ground of bona fide need under Section 21 of U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972. Property in dispute is a shop, rent of which, according to the landlord, is Rs. 200/- per month and according to the tenant is Rs. 40/- per month. Area of the shop is 27.5 squire yard (Frontage 10 feet and depth 25 feet), Release application was registered as P.A. Case No. 90 of 1998. Prescribed Authority/J.S.C.C., Meerut allowed the release application on 17.10.2000. Against the said judgment and decree, Misc. Appeal No. 277 of 2000 was filed, which was dismissed by District Judge, Baghpat on 2.4.2002, hence this writ petition. 3. The most important point argued by the learned Counsel for the tenant petitioner is that property in dispute is situate in Baghpat and Baghpat was made District on 18.9.1997 and prior to that it was part of Meerut District, hence release application, which was filed exactly after one year, i.e. 15.9.1998, before Prescribed Authority, Meerut was not maintainable. Learned Counsel has further argued that even before 1997, District Judge, Meerut under Section 3(e) of the Act had passed an administrative order that Additional C.J.M./ Civil Judge, Baghpat should exercise powers of Prescribed Authority in respect of cases arising out of from Baghpat area. This Court inquired the matter from the Administrative Section of the High Court. Joint Registrar called for the report from both the District Judges, i.e. District Judge, Baghpat as well District Judge Meerut. Both the District Judges submitted their reports. According to the reports, Sri K.S. Rakhra, the then District Judge, Meerut (as his lordship then was) by order dated 25.6.1997 appointed Sri Krishan Singh, A.C.J.M., Baghpat as Prescribed Authority to hear cases relating to Tehsil Baghpat and Badaun. That Sri S.C. Srivastava was initially appointed O.S.D., Baghpat and thereafter District Judge, Baghpat through notification dated 11.6.1999 and no order passed by him regarding jurisdiction of Prescribed Authority is available on record (Sri S.C. Srivastava as District Judge, Baghpat, decided the appeal giving rise to the instant writ petition). It appears that after creation of District Baghpat, there was a lot of confusion about jurisdiction of Courts. It appears that after creation of District Baghpat, there was a lot of confusion about jurisdiction of Courts. Even regular District Judge was appointed in June, 1999 and till then Sri S.C. Srivastava was working as officer on special duty. 4. Before the Appellate Court, the question of jurisdiction was not argued, hence there is no discussion on that point in the judgment of the Appellate Court, even though ground No. 2 of Memorandum of Appeal related to the said point. In the written statement, copy of which is Annexure-5 to the writ petition, no plea regarding jurisdiction was taken. A plea regarding territorial jurisdiction shall be taken at the first opportunity. Principle of Section 21, C.P.C. according to which no objection as to the place of suing shall be allowed by any appellate Court unless such objection was taken in the Court of first instance at the earliest possible opportunity applies to the proceedings in question also. 5. Moreover, there is no dispute that District Judge Baghpat was competent authority to decide the appeal and he in fact decided the appeal. In view of it any error of jurisdiction of the trial Court/prescribed authority stood cured. 6. As far as merit of the case is concerned, the landlord pleaded and it was found proved that he was carrying on business of selling pan and cigarettes from a rented shop, which is extremely small hardly 5 feet x 5 feet. Supreme Court in G.K. Devi v. Ghanshyam Das, A.I.R. 2000 S.C. 656 has held that a tenanted shop cannot be taken into consideration while deciding the need of the landlord for his own shop. Tenant pleaded that the shop adjacent to the shop in dispute also belonged to the landlord as through same sale deed (dated 16.7.1992), he had purchased both the shops, hence he could start business in the adjacent shop. It was further pleaded that the availability of the adjacent shop was concealed by the landlord. In respect of the said shop, landlord stated that it was in possession of his brother Israr (number of the shop in dispute is 246/1 and of the adjacent shop 246). Both the Courts below found that in the adjacent shop, landlord’s brother-Issar was carrying on business since 1992-93 and his wife had also established a P.C.O. in the said shop since 1997. Both the Courts below found that in the adjacent shop, landlord’s brother-Issar was carrying on business since 1992-93 and his wife had also established a P.C.O. in the said shop since 1997. Both the Courts below rejected the contention of the tenant that as brother is not included in the definition of family, hence adjacent shop must be deemed to be available to the landlord. In the release application it was stated that landlord required the shop in dispute for expansion of business, which he proposed to do alongwith his another brother Irfan. Areas of the two shops are exactly equal. 7. In respect of the adjoining shop from where landlord’s brother and his wife were doing business, the case of the landlord was that he had brought up his younger brother and he was entitled to settle him in business. 8. It is correct that brother is not included in the definition of family. However if a person gives a shop belonging to him, to his bother to do business and he himself continues to do business from a small tenanted shop, then no fault can be found in his conduct, unless it is proved that this arrangement was arrived at to evict the tenant. In the instant case, neither there is any such finding nor even any allegation that landlord allowed his brother Israr to do business in the adjoining shop in order to make a ground for eviction of the tenant. Since 1992, landlord’s brother is doing business in the adjoining shop and release application was filed in 1998, i.e. Six years thereafter. If a landlord gives preference to his brother over his tenant, then no fault can be found. In case landlord had sought release for his brother, then it could not be allowed. However, if another shop available to the landlord is allowed by him to be occupied by his brother, then it cannot be said that landlord has got another accommodation available with him. There cannot be any doubt or dispute that landlord does require a good shop. He has got two options, either to evict his brother or his tenant. The law of eviction of tenant on the ground of bona fide need is not so harsh that a landlord shall be denied relief on this ground if he can start business in a shop belonging to him after evicting his real brother. He has got two options, either to evict his brother or his tenant. The law of eviction of tenant on the ground of bona fide need is not so harsh that a landlord shall be denied relief on this ground if he can start business in a shop belonging to him after evicting his real brother. 9. In respect of comparative hardship, both the Courts below rightly held that as tenant, had not made any efforts to search alternative accommodation, hence balance of hardship lay against him. This view is in consonance with the Supreme Court judgment in B.C. Bhutada v. G.R. Mundada, A.I.R. 2003 SC 2713. 10. Lastly learned Counsel for the petitioner argued that the Courts below should have considered the question of part release. In my opinion, part release is out question as frontage of the shop is only 10 feet and depth 25 feet. If the shop is divided, then it will give rise to two galleries of 5 feet width and 25 feet depth, neither suitable for the landlord nor tenant. 11. Writ petition is accordingly dismissed. 12. Tenant-petitioner is granted six months time to vacate provided that : (1) Within one month from today tenant files an undertaking before the Prescribed Authority to the effect that on or before the expiry of aforesaid period of six months he will willingly vacate and handover possession of the property in dispute to the landlord-respondent. (2) For this period of six months, which has been granted to the tenant-petitioner to vacate, he is required to pay Rs. 6,000/- (at the rate of Rs. 1000/- per month) as rent/damages for use and occupation. This amount shall also be deposited within one month before the Prescribed Authority and shall immediately be paid to the landlord-respondent. In case of default in compliance of any of these conditions tenant-petitioner shall be evicted through process of Court after one month. It is further directed that in case undertaking is not filed or Rs. 6,000/- are not deposited within one month then tenant-petitioner shall be liable to pay damages at the rate of Rs. 2,000/- per month since after one month till the date of actual vacation. Similarly, if after filing the aforesaid undertaking and depositing Rs. It is further directed that in case undertaking is not filed or Rs. 6,000/- are not deposited within one month then tenant-petitioner shall be liable to pay damages at the rate of Rs. 2,000/- per month since after one month till the date of actual vacation. Similarly, if after filing the aforesaid undertaking and depositing Rs. 6,000/- the accommodation in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs. 2,000/- per month since after six months till actual vacation. It is needless to add that this direction is in addition to the right of the landlord to file contempt petition for violation of undertaking and execution application under Section 23 of the Act. ———