JUDGMENT Hon'ble Devendra Pratap Singh,J. Heard Sri R.N. Singh, learned Senior Advocate assisted by Sri A.K. Rai, Advocate for the petitioner and the counsel for the respondent-caveator. 2. This petition by the tenant is directed against concurrent orders dated 30.9.2009 and 8.4.2010 by which both the courts below have allowed the release application filed by the respondent-landlord. 3. The respondent landlord filed an application for release under Section 21(1)(a) of the U.P. Act No. 13 of 1972 (hereinafter referred to as the Act) with the allegation that he was the landlord and owner of House No. 52/1/1, Mohalla Laxmikund in Varanasi where the father of the petitioners Late Kashi Nath Yadav was the tenant and after his death both the petitioners became joint tenants of three rooms, a small covered space used as kitchen, store, toilet at the rate of Rs. 1500/- per month (hereinafter referred to as the disputed premises). 4. It was further pleaded that the landlord who is an acute heart patient is residing on the second floor of the building consisting of four living rooms, store room, kitchen and two toilets out of which one living room is exclusively for one of the co-owners for her occasional visits and his family consists of he himself, his wife, two adult sons and? spinster sister of his father. It was further stated that he was dealing in software and software development works from two rooms situated on the first floor as his office and keeps his business related materials but they are unfit for living due to want of any amenities such as toilet, kitchen etc. It was further alleged that he suffered a massive heart attack in November, 2006 whereafter he was hospitalized for a substantial period and was advised complete bed rest for six weeks and on medical advise he has to live strain free life and therefore, needed the disputed premises for his own occupation as his living rooms are on the second floor and he has to ascend at least 42 steps which not only is in cumbersome but is risky to his life. It was further asserted that though the tenancy was residential, the petitioner tenant was using one of the rooms for stocking of 'Sarees' for sale without his consent. It was further asserted that the tenants have purchased a residential building bearing no. It was further asserted that though the tenancy was residential, the petitioner tenant was using one of the rooms for stocking of 'Sarees' for sale without his consent. It was further asserted that the tenants have purchased a residential building bearing no. D-48/143-C-D-2E in Mohalla Misir Pokhra in Varanasi consisting of four living rooms with toilet, kitchen, store etc. but for his selfish ends he is using the said place for lodging of pilgrims. 5. The petitioner tenant contested the said application admitting the landlord tenant relationship and further stating that the landlord has been increasing the rent from time to time and at present it was Rs. 1500/- per month. It was further stated that the landlord is comfortably living in four rooms, store room, kitchen, toilet etc. and the co owners are residing in different cities and though it was admitted that the landlord did suffer a massive heart attack, the problem could be solved by exchanging one room on the first floor with that of the tenant on the ground floor. It was further asserted that the petitioner has been singled out as against certain other tenants who were also on the ground floor. He admitted purchase of the residential building but alleged that it was being utilized for business purposes. 6. Both the courts below after going through the evidence of the parties have found that the landlord was a chronic heart patient and had to climb 40 stairs to reach his living room and therefore, he required the disputed premises for his own personal use. The courts further went on to hold that the tenants in fact were in possession of a residential building which they had sold out during the pendency of the release application. After recording the aforesaid findings, it found that the need of the landlord was both genuine and bona fide and went on to hold that in case the application is rejected, the landlord would suffer greater hardship. 7. It is urged that the appellate court misdirected itself by assuming that once a non-residential building had been acquired by the landlord, his defence could not be considered in view of the judgment of the Apex Court rendered in the case of Shiv Singh Chak Vs. Baby Jain [2008 A.C.J. 961]. 8. 7. It is urged that the appellate court misdirected itself by assuming that once a non-residential building had been acquired by the landlord, his defence could not be considered in view of the judgment of the Apex Court rendered in the case of Shiv Singh Chak Vs. Baby Jain [2008 A.C.J. 961]. 8. No doubt the courts below have taken note of the decision of the Apex Court in the case of Shiv Singh Chak (supra) but despite it, both the courts below have considered the hardship of the petitioner and have recorded categorical findings that the petitioner made no sincere efforts during the pendency of the release application for searching out an alternative accommodation. This finding is based on evidence on record and has not been shown to be perverse and therefore, the argument cannot be accepted. 9. It is then urged that the petitioner had given an offer in the courts below and also in his written statement that he was prepared to vacate one room on the ground floor in exchange for another room on the first floor, which offer was not considered by either of the courts. The offer has been repeated before this Court. 10. It is no doubt true that there is averment in the written statement and it appears that an offer was in fact made which was not considered by the courts below. But it has to be kept in mind that the release was being sought for occupation of a family headed by a heart patient who cannot be asked to live alone in the one room offered by the petitioner. Apart from that a perusal of the map, which is annexed with this petition shows that no conveniences including kitchen, toilet etc. would be available to the landlord and he would again have to climb the 40 stairs. Thus, the offer even if considered was worth rejection. 11. No other point has been urged. 12. In view of the aforesaid, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected. 13. The learned counsel for the petitioner on instruction of his client who is present in court, has given an undertaking that he would vacate the disputed premises within a reasonable time and would also pay the entire rent uptil that date. 14. Rejected. 13. The learned counsel for the petitioner on instruction of his client who is present in court, has given an undertaking that he would vacate the disputed premises within a reasonable time and would also pay the entire rent uptil that date. 14. Considering the aforesaid undertaking, it is directed that the petitioner shall not be evicted from the disputed premises till 30.7.2010 provided he deposits the entire rent uptil 30.7.2010 with the court below within a period of three weeks from today. The money shall be released in favour of the respondent-landlord. In case of default, the petitioner shall be liable for eviction forthwith. The petitioner shall also handover the peaceful and vacant possession without creating any third party rights to the respondent-landlord on or before 30.7.2010.