JUDGMENT Hon’ble Mrs. Poonam Srivastava, J.—The writ petition is taken up in the revised list. Shri Manish Tandon learned counsel for the petitioners is present. None present for the respondent tenant. 2. Despite time having been granted on several occasions, no counter affidavit has been filed so far. On 10th April, 2009, this Court directed to list this case peremptorily on 21.4.2009. The case is on the list continuously. In the circumstances, I proceed to hear Shri Manish Tandon learned counsel for the petitioners. 3. A release application was filed on 14th July, 1995 by the landlord under Section 21 (1)(a) of U.P. Act No. XIII of 1972 (in short referred to as the Act), for eviction of tenant from the accommodation situated on the ground floor of property No. 33/198-B, Mani Ram Bagia, Kanpur Nagar, comprising of three rooms, two Dalans and one Aangan, which was let out at monthly rent of Rs. 232.30 including taxes. 4. The release application was filed on the ground that the accommodation in tenancy of the tenant, has come in the share of petitioner No. 1 by virtue of family settlement. He is doing business of clothes including Lungi, Towels etc. in a rented shop in premises No. 33/198-A, Mani Ram Bagia, Kanpur in the name and style of M/s Mohan Lal Murari Lal. This accommodation No. 33/198-A, Mani Ram Bagia Kanpur, was a part of joint family property, but, subsequently, after the family settlement, it has come in the share of petitioner’s brother Shri Ram Narain Gupta. The petitioners are paying rent to him for occupation of the said accommodation for storing their stocks as they have paucity of accommodation. Some stocks are also kept on the road which causes considerable damages to the said stocks. 5. The petitioners are doing wholesale business of stationary books etc. and tenanted accommodation is used as go-down. 6. Number of documents were moved in support of the release application to establish the extent of business and the accommodation for storage etc. is required by the petitioner. The landlord’s contention is that except two affidavits, no evidence was brought on record before the Prescribed Authority. The release application was allowed by the Prescribed Authority on 4th March, 1998 and the Prescribed Authority directed the tenants to vacate the premises within one month. is required by the petitioner. The landlord’s contention is that except two affidavits, no evidence was brought on record before the Prescribed Authority. The release application was allowed by the Prescribed Authority on 4th March, 1998 and the Prescribed Authority directed the tenants to vacate the premises within one month. Aggrieved by the said judgment, the tenant preferred an appeal under Section 22 of the Act, which was registered as Rent Appeal No. 71 of 1998, Shri Bal Krishna Khandelwal v. Shri Shyam Narain Gupta and others. 7. During the pendency of the appeal, the tenant filed an application for adducing additional evidence under Order 41 Rule 27, C.P.C. The assertion by the landlord is that there was no averment to the effect that the said evidence proposed to be brought on record in appeal, was not in his possession at the stage when release application was contested before the Prescribed Authority. The petitioners filed objection to the application under Order 41 Rule 27, C.P.C. The tenant had also filed affidavit bringing on record his balance sheet to demonstrate extent of his business which could not be filed before the Prescribed Authority. 8. However, additional evidence was accepted by the Appellate Court vide order dated 23.5.2007 and the appeal of the tenant was allowed setting aside the judgment of the Prescribed Authority. 9. I have heard the learned counsel at length and perused the two judgments and also taken into consideration the grounds on which the appeal of the tenant was allowed. 10. On perusal of the judgment of the Appellate Court, it transpires that the main consideration while allowing the appeal, were the additional evidence kept on record. The Appellate Court while recording its finding on bonafide need and comparative hardship, was of the view that the landlords are doing wholesale business of Lungi, Towel, Gamchha etc. from a rented shop situated on the ground floor of Premises No. 33/198-A, Mani Ram Bagia, Kanpur in the name and style of M/s Mohan Lal Murari Lal which has fallen in the share of petitioners’ brother Shri Ram Narain Gupta in subsequent declaration of shares after family settlement. from a rented shop situated on the ground floor of Premises No. 33/198-A, Mani Ram Bagia, Kanpur in the name and style of M/s Mohan Lal Murari Lal which has fallen in the share of petitioners’ brother Shri Ram Narain Gupta in subsequent declaration of shares after family settlement. This fact has not been disputed that the accommodation from where the business is carried out is in the name of his brother and the Appellate Court was satisfied on this aspect as the certified copy of the judgment and decree of the declaratory/partition suit was brought on record. Also the rent is paid to Shri Ram Narain Gupta which was duly proved by Shri Ram Narain Gupta himself. The Court below was led away on account of the reason that the landlord themselves have filed list of Paper No. 49-C which consists of certain invoices of various trading firms including Navjyoti Textiles, Nachimuthu Brothers Textiles, Sagar Handloom, A Salam Textiles, Asia Lungis Centre, Haji Dhari Bullah Dost Mohammad, Mohd. Israr, Mohd. Iqrar Ansari, Nasiruddin, Imtauddin, Hazi Textiles, Standard Handloom, Bihar Handloom, Mohd. Fahim Tariq, Sri Ravi Textiles & Kohinoor Asli Lungi Textiles and G.P. Textiles. On the basis of freight receipts produced by the landlord-petitioners, the Appellate Court concluded that nominal freight is being paid and, therefore, it cannot deduced that the business conducted by the petitioners are on a large scale. The extent of business was also assessed on the basis of notice under Section 143(1-A) of the Income Tax Act for the assessment year 1993-94 and assessment year 1996-97. 11. Though the finding was recorded by the Appellate Court that the petitioners are carrying on business from a rented accommodation and paying rent but the release application was rejected and the judgment of the Prescribed Authority was set at naught for the reasons that the extent of business of tenant is very huge in comparison to the landlord petitioner. This conclusion was arrived at on the basis of additional evidence in respect of which objections were also filed but were not considered. The finding of the Prescribed Authority on the question of comparative hardship was also set aside by the learned Additional District Judge. It is apparent that the observations by the Appellate Court against the landlords is contrary to the principles laid down in various decision. The finding of the Prescribed Authority on the question of comparative hardship was also set aside by the learned Additional District Judge. It is apparent that the observations by the Appellate Court against the landlords is contrary to the principles laid down in various decision. The finding that the release application has been filed with the intention to let out subsequently on huge amount of Pagadi is also without any basis. It appears that the Appellate Court was led away by a spate of imagination which are farfetched. In the case of Raj Mohan Krishna v. IInd Addl. District Judge, Allahabad and others, 1992(2) ARC 241, this Court had come to the conclusion that it is not open to the tenant to challenge family settlement in release application under Section 21 (1)(A) of the Act. In the instant case, in fact, it is admitted case and finding has been recorded to the effect that the tenant is paying rent after family settlement and he cannot be compelled to continue in a rented accommodation only because the extent of business of the tenant is larger than that of the landlord. In the case of Satish Kumar v. IXth Addl. Distt. Judge Bulandshahr and others, 1997 All CJ 182 it was laid down that if the landlord wants to beneficially enjoy his own property and other property occupied by him in the capacity of tenant or any other business, it is not for the Court to dictate him to continue to occupy such premises. Similar view was expressed in the decision of Prem Prakash Dhawan and others v. Spl. Judge (ADJ) Saharanpur and others, 1990 (1) ARC 20 and Chaudhary Ram v. IIIrd ADJ Saharanpur and others, 1999(2) ARC 334. 12. The finding arrived at by the Appellate Court on the face of it, and in view of the principle enunciated in a number of decisions, is perverse, against all norms followed by this Court and the principles laid down by the Apex Court. 13. In view of the fact what has been discussed above, I do not agree with the finding recorded by the Appellate Court. The petitioners are trying to get the accommodation in question released since July 1995 but they have been unsuccessful all through. It is, therefore, in the fitness of circumstances that the release application be allowed. 13. In view of the fact what has been discussed above, I do not agree with the finding recorded by the Appellate Court. The petitioners are trying to get the accommodation in question released since July 1995 but they have been unsuccessful all through. It is, therefore, in the fitness of circumstances that the release application be allowed. Accordingly, the release application is allowed and the judgment and order dated 23.5.2007 passed by the Appellate Court is set at naught. The tenant-respondent is directed to handover peaceful possession of the premises in question within one month from today failing which it will be open to the landlord, petitioners to take legal coercive measures to oust the tenant-respondent forthwith. ————