JUDGMENT Sunita Agarwal, J. – Heard Sri Girija Shankar Srivastava, learned counsel for the petitioner and Sri Pramod K. Gupta, learned counsel for the respondents. 2. By means of the present writ petition, the petitioner is challenging the order dated 30.9.2014 passed in Rent Appeal No. 20 of 2013 as also the order dated 9.12.2014 passed on the review application namely Misc. Review Petition No. 698 of 2014. 3. The brief facts relevant to decide the controversy in hand are that a release application under Section 21 (1)(a) was filed by Sri Ashok Kumar Gupta i.e. respondent no. 3 stating therein that he required the shop in question to start a business for his livelihood. It was contested by the petitioner on the ground of maintainability of the application as well as on merits. 4. The Prescribed Authority though found that the release application was maintainable at the instance of respondent no. 3, who is the co-landlord of the disputed shop, however, has rejected the need of the landlord on the ground that he has not been able to establish his bona fide requirement for the shop in question. 5. On comparative hardship also the findings are against the landlord. In appeal, the appellate court came to the conclusion that the need set up by the landlord in the release application is bona fide, genuine, and pressing. 6. On comparative hardship, it has recorded that the tenant got a house released in his favour on the plea that it was dilapidated and was required for the construction of a shop to carry on his business of Silver and Gold Ornaments, which he is carrying on in the disputed shop. It was found that as the landlord does not possess an alternative accommodation, he would suffer greater hardship, in case the release is refused. 7. On the ground of maintainability, the appellate court found that the applicant-landlord being co-landlord of the shop in question could maintain the release application for his need. There is no requirement to implead other co-landlords for release of a commercial premises. His need cannot be thrown away on the ground that other co-owners who have only a minor shares in the disputed property have not been impleaded. 8. There is no requirement to implead other co-landlords for release of a commercial premises. His need cannot be thrown away on the ground that other co-owners who have only a minor shares in the disputed property have not been impleaded. 8. A review petition was filed by the petitioner before the lower appellate court with the plea that the order passed by it suffers from error apparent on the face of the record inasmuch as the fact that the co-landlord namely Praduman Kumar had specifically expressed his unwillingness for release in favour of the applicant-landlord had gone unnoticed. Two affidavits of the co-landlord showing his unwillingness, namely 69-C and 89-C were filed by the tenant before the Court below which have not been totally ignored while rejecting the objections of the tenant on the maintainability of the release application. The review petition was partly allowed vide order dated 9.12.2014. While incorporating the fact of filing of two affidavits namely 69-C and 89-C by one of the co-landlords, the appellate court refused to review the release order on the ground that these two affidavits are not of help to the tenant as the rights of the co-landlord is yet to be adjudicated by the Competent Civil Court. The fact of filing these two affidavits will not alter the judgment as there are other grounds to maintain the order of release of the shop in question. 9. Challenging the release order passed by the appellate court and the order passed in the review petition; Sri Girija Shankar Srivastava learned counsel for the petitioner vehemently urged that the co-landlord had expressed his unwillingness to eject the tenant from the shop in question by filing affidavits before the Prescribed Authority on 31.1.2013. Both the Prescribed Authority as also the appellate court had erred in coming to the conclusion that the release can be maintained by the applicant co-landlord. 10. While elaborating this submissions, certain facts were placed by him which are narrated herein below: - 11. The tenancy of the shop in question commenced in the year 1938 when it was let-out by late Shyam Raj and late Swami Nath sons of late Ram Charan in favour of late Gulab Chand, the uncle of the father of the petitioner on the monthly rent of Rs. 30/-. The father of the petitioner was also doing jewellery business with his uncle Gulab Chand. 30/-. The father of the petitioner was also doing jewellery business with his uncle Gulab Chand. After death of Gulab Chand on 10.6.1946, late Swami Nath and late Shyam Raj became joint landlords of the shop in question. The co-owners created a tenancy in favour of father of the petitioner late Madan Mohan Das Agrawal on a monthly rent of Rs. 40/-, out of which Rs. 20/- per month was being paid separately to two landlords and separate rent receipts were being issued by them. The jewellery business in the name of "Gopal Das Madan Mohan Das" was being run by the father of the petitioner. 12. In the year 1955, Shyam Raj died and after his death his heirs Banwari Lal, Murari Lal and Praduman Kumar and their mother Smt. Shanti Devi were realising rent from the father of the petitioner for the share of late Shyam Raj. As Shanti Devi and Praduman Kumar wanted their separate share, the father of the petitioner started paying 12.25/- Paise per month to Banwari Lal and Murari Lal and 7.75/- Paise to Praduman Kumar and Smt. Shanti Devi whereas Rs. 20/- per month rent was being paid to Swami Nath. 13. In the meantime, late Banwari Lal and late Murari Lal sold their share in the shop in question by way of a registered sale deed in favour of Swami Nath and since then he started realising Rent @ 32.25/- Paise per month whereas Rs. 7.75/per month was being paid to Smt. Shanti Devi and Praduman Kumar. The monthly rent was increased to Rs. 124/- per month, out of which Rs. 100/- was paid to Swami Nath and Rs. 24/- to Praduman Kumar. Upon death of Swami Nath, his share of rent of Rs. 100/- was paid to his sons Ashok Kumar (the applicant landlord) and his two brothers namely Vinay Kumar and Binod Kumar till 1985. Thereafter, some dispute arose regarding apportionment of rent and upon refusal by the joint landlords, the tenant started depositing the rent under Section 30 of U.P. Act No. 13 of 1972 in four different cases in the name of Kunti Devi, Suman Devi and Ashok Kumar. 14. The respondent no. Thereafter, some dispute arose regarding apportionment of rent and upon refusal by the joint landlords, the tenant started depositing the rent under Section 30 of U.P. Act No. 13 of 1972 in four different cases in the name of Kunti Devi, Suman Devi and Ashok Kumar. 14. The respondent no. 3 Sri Ashok Kumar Gupta claimed himself as the sole landlord of the shop in question on the basis of a collusive compromise decree dated 7.9.1988 passed in a partition suit namely Original Suit No. 514 of 1988. Sri Praduman Kumar filed an application for setting aside the said compromise decree being Misc. Case No. 179 of 1988 before the Civil Judge (Senior Division) Gorakhpur and a Misc Appeal No. 11 of 1988 was filed before the District Judge, Gorakhpur. The effect and operation of the compromise decree dated 7.9.1988 was stayed and both these cases are still pending before the Competent Civil Court. These facts were brought before the Courts below in the release proceedings. 15. Earlier in a First Appeal No. 143 of 1972, a compromise dated 24.5.1974 was entered into between the parties therein and the appeal was decided. However, on an application moved by Praduman Kumar, this compromise decree was set aside by order dated 25.5.2009 passed by the High Court. In the first appeal, Sri Ashok Kumar Gupta, the applicant-landlord was transposited and the appeal was dismissed setting aside the decree of the trial court by a judgment and order dated 30.11.2012. Thus the compromise decree dated 7.9.1988 passed in suit no. 514 of 1988 passed on the basis of compromise dated 24.5.1974 arrived in First Appeal No. 143 of 1992 virtually became ineffective. Meaning thereby that there is no partition between the co-landlords and the release application filed by the applicant-landlord claiming himself as the sole landlord of the shop in question is misconceived. Further the affidavit 69-C and supplementary affidavit 89-C of Virendra Kumar son of Praduman Kumar the joint landlord were filed on 31.1.2013 by the petitioner, wherein the co-landlord had expressed his unwillingness for the release of the shop in favour of Ashok Kumar the applicant-landlord. The Prescribed Authority wrongly decided the issue of maintainability against the petitioner, which was challenged in a cross-objection filed in the Rent Appeal No. 20 of 2013 filed by the applicant-landlord. 16. The Prescribed Authority wrongly decided the issue of maintainability against the petitioner, which was challenged in a cross-objection filed in the Rent Appeal No. 20 of 2013 filed by the applicant-landlord. 16. In any case, in view of the fact that the co-landlord had objected to the release, it could not have been decided on merits by the lower appellate court. 17. Moreover, the findings on merits of the release application recorded by the lower appellate court are perverse inasmuch as while reversing the findings of the Prescribed Authority, the reasons given by it were not upset. The requirements of Order 41, Rule 31 have not been complied with by the lower appellate court. The applicant-landlord being 60 years of age at the time of filing of release application could not have been said to have genuine need for the shop in question. The need set up by him in the release application can only be termed as his mere desire to evict the tenant. 18. Further on comparative hardship, the requirement of Rule 16(2) of U.P. Act No. 13 of 1972 have not been complied with. The provisions of Rule 16(2)(a) of the Rules are mandatory and non-compliance of the said provision would vitiate the decision of the lower appellate court. 19. Learned counsel for the respondent no. 3, repelling the contentions of the learned counsel for the petitioner, placed reliance upon the Full Bench decision in Gopal Dass and another v. 1st Additional District Judge, Varanasi and others, 1987 (1) ARC 281 (F.B.), to submit that the release application filed by one of the co-landlord is maintainable. 20. Further submission is that the co-landlord Praduman Kumar had never objected to the release nor he filed an impleadment application. The affidavits filed by his one son in the year 2013 would not be sufficient to conclude that the release filed in the year 2011 was objected by the co-landlord. This apart, there is a history of long drawn litigation between the co-sharers of the shop in question as also for other joint properties which were devolved upon them through their ancestors. 21. The affidavits 69-C and 89-C, heavily relied upon by the petitioner to submits that the co-landlord had objected to the release, were brought on record after death of the co-landlord i.e. Praduman Kumar who was contesting the partition suit with the applicant-landlord Ashok Kumar. 22. 21. The affidavits 69-C and 89-C, heavily relied upon by the petitioner to submits that the co-landlord had objected to the release, were brought on record after death of the co-landlord i.e. Praduman Kumar who was contesting the partition suit with the applicant-landlord Ashok Kumar. 22. This apart, admittedly Praduman Kumar had only a minor share in the shop in question and in absence of any expressed unwillingness shown by him for eviction of the petitioner-tenant, the release was perfectly maintainable. 23. So far as the findings on bona fide need and comparative hardship are concerned, he submits that the lower appellate court found that there is no other place for the business of the applicant-landlord who wants to start his Tea business in the shop in question. The mere fact that at the time of filing of the release application, he was 60 years of age would not be sufficient to reject his need as a mere desire. 24. He further submits that the Prescribed Authority had erred in rejecting the need of the applicant-landlord as a mere desire on the ground that he sold one shop in the year 2009, allegedly for the treatment of his wife and no document has been brought on record to establish the fact of illness of his wife by the landlord. 25. On the comparative hardship, the Prescribed Authority erred in rejecting the contention of the applicant-landlord that one house was got released by the tenant on the plea that they would construct a shop for running their "Sarrafa" business. This plea was rejected on the ground that there was no material on record to establish that shops were constructed by the tenant after demolition the said house, which was released in his favour. 26. On the other hand, the lower appellate court came to the conclusion that the fact of the release of the house in question would be a material fact for considering the comparative hardship of the tenant viz-a-viz landlord. As the landlord has no other shop for his business whereas the tenant got a property release in his favour on the plea of construction of shop, the landlord would suffer more hardship, in case the release is refused. 27. Having heard learned counsel for the parties and perused the record. As the landlord has no other shop for his business whereas the tenant got a property release in his favour on the plea of construction of shop, the landlord would suffer more hardship, in case the release is refused. 27. Having heard learned counsel for the parties and perused the record. From the material on record, it is established that Praduman Kumar who was the co-landlord or joint landlord was alive when the present release application was filed on 21.1.2011. It is also established that there was a long drawn litigation between Praduman Kumar and the applicant-landlord Ashok Kumar with regard to the several properties devolved upon them through their ancestors. The suit for partition filed by both the parties are pending before the Competent Civil Court. Despite this fact, he did not object to the release nor had filed any impleadment application in the pending P.A. Case No. 2 of 2011 for objecting to the eviction of the tenant while he was contesting the suit for partition of his share. After death of Praduman Kumar, two affidavits of Virendra Kumar his son were filed by the tenant before the Prescribed Authority on 31.1.2013, wherein initially in paragraph 23' he had stated that the heirs of Praduman Kumar were joint landlords of the shop in question and they want that the shop in question be released by late Mohan Das Agarwal in favour of the heirs of Praduman Kumar i.e. Virendra Kumar. 28. Later on a supplementary affidavit dated 11.10.2013 was filed with a view to substitute this assertion in paragraph 23' of the earlier affidavit dated 31.1.2013 by saying that the heirs of Praduman Kumar do not want for eviction of the tenant Lalit Mohan Das Agarwal. 29. Even if it is assumed that the heirs of Praduman Kumar had objected to the release by filing these two affidavits which are numbered as paper nos. 69-C and 89-C, even then it cannot be concluded that the co-landlord Praduman Kumar had objected to the release. The release application which was filed on 21.1.2011 was clearly maintainable at the instance of applicant co-landlord. The consent of the other co-landlord namely Praduman Kumar was presumed to have been taken for the release of the shop in question in favour of the applicant-landlord. The release application which was filed on 21.1.2011 was clearly maintainable at the instance of applicant co-landlord. The consent of the other co-landlord namely Praduman Kumar was presumed to have been taken for the release of the shop in question in favour of the applicant-landlord. Subsequent withdrawal of the consent by the sons of the original co-landlord, who had never objected to the release, cannot frustrate the need of the applicant-landlord or has no relevance for the maintainability of the release filed in the year 2011. 30. This view taken by the Court finds support from the decision of the Apex Court in M/s. India Umbrella Manufacturing Co. and others v. Bhagabandei Agarwalla (Dead) by L.R.'s and others, AIR 2004 Supreme Court 1321, wherein it is held that one co-owner can file a suit on his behalf in his own right and as an agent of the other co-owners. The consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of disagreement. The suit once filed, the rights of the parties stand crystallised on the date of the suit and the entitlement of the co-owners to seek ejectment must be adjudged by reference to the date of institution of the suit. One of the co-owners who had given consent for filing the suit cannot withdraw his consent midway the suit so as to prejudice the other co-owners. In the case of India Umbrella, the suit was filed by both the co-owners and hence on a subsequent stage, withdrawal of consent by the other co-owner was not permitted. 31. Similarly in the present case, the co-owner Praduman Kumar had never objected to the release though he was contesting with the applicant-landlord in partition suit. He was well aware of the pendency of the release application but did not object to the eviction of the tenant. 32. Admittedly, he never moved an impleadment application nor filed any affidavit objecting to the eviction of the tenant. After his death all of his heirs became co-landlords jointly. From the pedigree given in the affidavit 69-C, it is apparent that apart from Virendra Kumar, there are two other sons, one daughter and his wife Smt. Raj Kumari. None of them had objected to the release. After his death all of his heirs became co-landlords jointly. From the pedigree given in the affidavit 69-C, it is apparent that apart from Virendra Kumar, there are two other sons, one daughter and his wife Smt. Raj Kumari. None of them had objected to the release. The affidavit 69-C was filed only by Virendra Kumar stating therein that all the heirs are contesting in the pending partition suit. Thus the withdrawal of consent, even if assumed, on the basis of affidavit of Virendra Kumar filed in the year 2013, would not be sufficient to conclude that the co-landlord Praduman Kumar or his heirs had objected to the eviction of the tenant-petitioner. 33. In this view of the matter, this Court does not find any justification to interfere in the findings recorded by the lower appellate court on the issue of maintainability of the release application. The question of maintainability of the release application by one of the co-owner has been set at rest with the Full Bench decision of this Court in Gopal Dass (supra) and the decision of Apex court in M/s. India Umbrella Manufacturing Co. (supra). 34. So far as the bona fide need is concerned, the findings recorded by the Prescribed Authority are based upon the fact that the applicant-landlord sold a shop in the year 2009 in which he was carrying on sweetmeat business. The plea of the applicant-landlord that he required money for the treatment of his wife and as such was constrained to sell the shop was not accepted having not been established by cogent evidence. This finding was upset by the lower appellate court and it came to the conclusion that so far as need of the shop in question, it would be the choice of the landlord. In the year 2004, he was in genuine need of money for the treatment of his wife which is an event occurred about 1 & = year before filing of the instant release application. 35. The conclusion drawn by the lower appellate court is perfectly justified inasmuch as there is no dispute about the fact that the shop in which the applicant-landlord was doing his sweetmeat business was sold by him in the year 2009. The release application was filed after 1 & = year of the said sale. 35. The conclusion drawn by the lower appellate court is perfectly justified inasmuch as there is no dispute about the fact that the shop in which the applicant-landlord was doing his sweetmeat business was sold by him in the year 2009. The release application was filed after 1 & = year of the said sale. When this objection was raised by the tenant, the landlord had come out with the categorical plea that he was under financial constraint to sell the said shop for the treatment expenses of his wife who remained ill for about five to six years. Further he had no other source of income to maintain himself after the sale of the said shop and now he intends to carry on business in the disputed shop with the assistance of his friends and relatives. 36. These facts narrated by the applicant-landlord could not be disputed by the tenant rather he contested the need on the ground that the landlord was of 60 years of age on the date of filing of release and his daughters are happily married and his sons are settled in their life, therefore, the landlord did not require the shop to start his business. Mere facts that the family members of the landlord are settled in their life or at the time of filing of the release, the landlord was 60 years of age, can not be factors to reject his need as a mere desire. Further the release having been filed after 1 & 1/2 year of the sale of shop by him and the applicant-landlord gave a reason for the sale by him in the year 2009, it was not open for the Prescribed Authority to scrutinise the reason for the sale or record any finding on its surmises and conjectures. In any case, this sale was not during the pendency of the release and hence had no bearing on the need of the landlord. Any event occurred 1 & = year prior to filing of the release for which a reasonable explanation has been given by the landlord, could not be taken into consideration for terming the need of the landlord as not genuine. No law prohibits or curtail an owner's right to set up his trade, business or profession of his choice at a chosen place by him at the age of 60 years. 37. No law prohibits or curtail an owner's right to set up his trade, business or profession of his choice at a chosen place by him at the age of 60 years. 37. On comparative hardship, the record reflects that the tenant got a house released in his favour by the Prescribed Authority on the ground that it was dilapidated and was required by him for the construction of a shop to carry on his business of Silver and Gold Ornaments. The order of the Prescribed Authority was brought on record. 38. The lower appellate court rightly recorded that the tenant got the said house released on the ground that he would demolish it and construct new shops therein. As this premises was released in his favour after satisfaction recorded by the Prescribed Authority regarding his financial capability to demolish and reconstruct, the tenant cannot be allowed to take a plea that he was not in a position to demolish the released premises and construct new shops therein. Merely because there is no evidence on record to prove that the tenant had reconstructed new shops after demolition of the house would not be a factor to reject the contention of the landlord that he would not suffer greater hardship than the tenant. In fact this is one of the factor which goes in favour of the landlord while comparing his likely hardship. 39. This apart, the landlord had no other place for his business and further the tenant did not make any effort to arrange for an alternative accommodation and therefore, the comparative hardship was rightly found to be tilted in favour of the landlord. It is established that in case of rejection of release, the landlord would suffer more hardship as he has no other shop whereas the tenant has an option to construct his new shop. 40. Thus looking to the matter from each angle, the release order passed by the appellate authority for the need of the applicant-landlord is not to be interfered. 41. In so far as the requirement of Order 41, Rule 31 is concerned, it is evident from a close scrutiny of the judgment of the lower appellate court that the reasons given by the Prescribed Authority for rejection of release have been examined and upset in appeal. This requirement of Order 41, Rule 31 has been fulfilled by the lower appellate court. 42. This requirement of Order 41, Rule 31 has been fulfilled by the lower appellate court. 42. No other point has been pressed. 43. On the questions of maintainability of the release application, the bona fide need and comparative hardship, several judgments have been relied upon by both the counsels in support of their points. 44. There is no need to discuss these judgments in detail as there is no dispute with regard to the legal preposition relied upon by both the counsels. 45. On the facts and circumstances of the present case, however, this Court does not find any reason to interfere. There is no merit in the writ petition. 46. Lastly, this Court finds that the disputed property is a commercial place and in order to grant a reasonable time to the tenant to shift to another place, one year time is provided subject to the conditions that an undertaking shall be filed by the petitioner-tenant within a period of four weeks before the Court below that he will vacate the shop in question on or before 1st February, 2017. 47. In the event of non-furnishing of the undertaking or failure to vacate the shop in question within the time given above, appropriate proceedings for his eviction may be initiated. 48. With the above observations and directions, the writ petition is dismissed. Petition dismissed.