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2022 DIGILAW 399 (ALL)

Damodar Das v. Ram Swaroop Ghura

2022-03-21

J.J.MUNIR

body2022
JUDGMENT : J.J. MUNIR, J. 1. This is a writ petition by the landlord, who was successful in proceedings for release under Section 21(1)(a) of the U.P. Act No. 13 of 1972 (for short ‘the Act’) before the Prescribed Authority, but failed before the Appellate Authority. 2. Damodar Das, the landlord filed for release of shop bearing No. 193, situate at Mohalla Sarrafa Bazar, Jhansi, under Section 21(1)(a) of the Act, that was in the tenancy occupation of Ram Swaroop Ghura. The application was registered on the file of the Prescribed Authority/Judge, Small Cause Court, Jhansi as P.A. Case No. 63 of 2007. 3. The landlord's case in brief was that he is the owner and landlord of shop No. 193 aforesaid (for short ‘the demised shop’). The demised shop had fallen to his share in a family settlement. Ram Swaroop Ghura, who shall hereinafter be referred to as ‘the tenant’ was in occupation thereof on a monthly rent of Rs. 100/-. The tenancy commences on the 24th of each English Calendar month and ends on the 23rd following. The tenant has not paid rent since 25th January, 2000 and is in default. Separate proceedings are being taken on that ground. The landlord has no other shop available to him, except the demised shop. He needed the demised shop for his personal use and occupation. The landlord so far does business in the shop owned by his brother Bhagwat Prasad. The landlord's brother aforesaid is now asking him to separate and vacate his shop at the earliest. The landlord is a married man. He has a family comprising his wife and three children, whom he has to provide for. The landlord has no other shop available to him except the demised shop, whereas the tenant has another shop located at Bajaja Bazar, Jhansi. If the tenant is asked to vacate the demised shop, he would not suffer any hardship. The tenant seldom sits in the demised shop. For the most part, the shop is without business. It is on these allegations that the landlord prayed that the shop be released in his favour on the ground of his bona-fide need. 4. The tenant filed a written statement, traversing the landlord's case. It was asserted that the application for release has been made by the landlord in connivance with his brothers for the ulterior purpose of securing an enhancement of rent. 4. The tenant filed a written statement, traversing the landlord's case. It was asserted that the application for release has been made by the landlord in connivance with his brothers for the ulterior purpose of securing an enhancement of rent. The landlord has no need for the demised shop and is not without occupation. He has a prospering business in shop No. 192, Sarrafa Bazar, Jhansi, which is a very big shop. In the said shop, the landlord sells herbs and medicines, besides dealing in supply of acid. No family partition between the landlord and his brothers has taken place. The brothers together have a number of shops available to them. Shop No. 192 is in the exclusive occupation of the landlord, where he does business. In addition, the landlord utilizes his house bearing No. 42/1, Gopal Nikhri, Gola Kunwa, Jhansi, where he does wholesale trade as well as retail in spices and dry fruits. The landlord does not need to do any other business nor has he got time to engage in other business. The landlord has constructed a big godown that is part of shop bearing No. 192, where he stocks substantial quantity of goods. The landlord's brother, Bhagwat Prasad does not do business in shop No. 192, but has his business under the name and style of Bahi Company. The other brothers of the landlord have their independent shops. The demised shop was earlier held by the tenant on a rent of Rs. 17.50 per month, but later on the landlord and his brother got it increased to Rs. 100/- per month and ever since, the tenant is paying the said rent to Bhagwat Prasad. Upon service of notice by the landlord to pay him rent, the tenant paid it to him, but later on the landlord refused. In consequence, the tenant has deposited rent under Section 30 of the Act before the Civil Judge (Junior Division), Jhansi. 5. It is also the tenant's case that he is a tenant in the demised shop for the past 70 years and has established business that commands goodwill. In the event, the tenant is evicted from the demised shop, his business would be ruined, besides the loss of goodwill. 5. It is also the tenant's case that he is a tenant in the demised shop for the past 70 years and has established business that commands goodwill. In the event, the tenant is evicted from the demised shop, his business would be ruined, besides the loss of goodwill. It is also the tenant's case that the landlord's grandmother, Smt. Chhita Bai had earlier instituted proceedings for release under Section 21(1)(a) of the Act, being Case No. 95 of 1985. In the said case, the landlord’s grandmother could not prove her case, but entered into a compromise, in consequence whereof, rent was increased from Rs. 17.50 per month to Rs. 100/-. The tenant also says that the disposition of the earlier case between the landlord's grandmother and himself as aforesaid works to bar the present proceedings as res-judicata. There is a further pleading by the tenant to the effect that post institution of the present proceedings, he made efforts to search alternative accommodation, but despite substantial efforts, he did not find any vacant shop. It is also averred that there is no possibility of finding an alternative shop that would be within the financial capacity of the tenant to bear the burden of rent. It is also pleaded that by grant of the release application, the tenant would suffer greater hardship than that suffered by the landlord in the event of refusal. 6. In support of his case, the landlord filed his own affidavit besides those of his brothers Bhagwat Prasad and Rajesh. In addition, an affidavit of Santosh Kumar Patel, counter affidavits of the landlord Damodar Das bearing Paper No. 61A, 90C and 109A have also been filed. Along with the counter affidavit of Damodar Das, paper No. 61A2, a photostat copy of Form-15 and a photostat copy of the registration certificate has been filed as Annexure B. Together with the affidavit of Damodar Das bearing Paper No. 90C2, a photostat copy of the registration from the Commercial Tax Department and a photostat copy of the licence have also been annexed. A number of documents have also been filed, which includes money order receipts, telephone bills, electricity bills, besides bills from the water works, a certified copy of the sale deed, a photostat copy of the ration card, money order coupons, a photostat copy of the order passed in M.A. Case No. 9 of 2003. A number of documents have also been filed, which includes money order receipts, telephone bills, electricity bills, besides bills from the water works, a certified copy of the sale deed, a photostat copy of the ration card, money order coupons, a photostat copy of the order passed in M.A. Case No. 9 of 2003. There is a moreful and complete description of the evidence to be found in the impugned judgment, not necessitating further reference to a summary thereof. 7. Likewise, affidavits were filed on behalf of tenant, Ram Swaroop Ghura bearing paper no. 24C2 and 27A2 with annexures being a photostat copy of the licence, money order receipts etc. a photostat copy of an affidavit of one Rahul Agarwal together with an annexed bill, an affidavit of Birjesh Kumar Vishwakarma bearing paper no. 29A2, besides an affidavit from Ram Swaroop. Documents too have been filed on behalf of the tenant, that includes a certified copy of the Commission report bearing paper no. 32C1, a certified copy of the application giving rise to P.A. Case No. 95 of 1985 being paper No. 31C, a copy of the order passed in the case aforesaid, notices from the Sale Tax and the Labour Department, rent receipts and a copy of the notice bearing Paper No. 98C1. Likewise, on behalf of the tenant, there is much evidence led, the details whereof find mention in a summary set out in the judgments of the Courts below. It does not require any further elucidation, except what is relevant and that would be noticed during the course of this judgment. 8. The Prescribed Authority allowed the application for release, holding that the issue raised about lack of proof of partition within the family and the demised shop falling to the landlord's share is something which was not open to the tenant to question, given the fact that there is no dispute about the partition between the co-shares/brothers. It was also held that the tenant had acknowledged the landlord and paid him rent, which he later on deposited in Court, pleading a case of refusal to receive rent. It was further held that the landlord's need was bona-fide as that was the only shop available to him. The finding is based on an extensive survey of the shops available to the family and the position of their occupancy by various members/brothers and nephews of the landlord. It was further held that the landlord's need was bona-fide as that was the only shop available to him. The finding is based on an extensive survey of the shops available to the family and the position of their occupancy by various members/brothers and nephews of the landlord. The case of the tenant that the landlord was doing business in shop No. 192 exclusively and not along with his brother was discarded by the Prescribed Authority. Bona-fide need was also found in favour of the landlord and against the tenant. The shop in Sarrafa Bazar (described elsewhere as Bajaja Bazar) was held to be one purchased in the name of the tenant's daughter-in-law, Smt. Karuna Devi, where the tenant's son was doing business in cloth, a finding based on some admission in the tenant's affidavit 27A2 and 76A2. Efforts made to search an alternative accommodation was not believed by the Prescribed Authority, as it was bereft of details about the efforts made. 9. The Prescribed Authority's judgment granting release on 22.09.2009, was reversed in appeal by the Appellate Authority by his judgment and order dated 09.08.2012, rendered in Rent Control Appeal No. 15 of 2009. It is this judgment of the Appellate Authority/ Additional District Judge/Special Judge (E.C. Act), Jhansi that the landlord has impugned in the present writ petition before us. 10. Heard Mr. Atul Dayal, learned Senior Advocate assisted by Mr. Ravindra Srivastava, learned Counsel for the landlord and Mr. Pankaj Agarwal, learned Counsel appearing on behalf of the tenant, now represented by his LRs. 11. It must be remarked here that the tenant Ram Swaroop Ghura, passed away pending this appeal and his heirs and LRs. have been substituted, who are his son Sia Saran, his two daughters, Pista Devi and Meera Devi and the tenant's widow Prema Devi. The substitution was carried out in the year 2018 on the basis of an application made in the year 2016. The tenant died on 05.11.2015. 12. Before this Court, substantial affidavits have been exchanged, that is to say, the counter affidavit and the rejoinder affidavit dated 09.08.2015 and 20.08.2015. Both these affidavits relate to the time when the tenant Ram Swaroop Ghura was alive. There is no further material placed, on record on account of the event of Ghura’s supervening death, about the affairs of the tenant's business in the hands of his heirs. Both these affidavits relate to the time when the tenant Ram Swaroop Ghura was alive. There is no further material placed, on record on account of the event of Ghura’s supervening death, about the affairs of the tenant's business in the hands of his heirs. It has not been indicated by any further affidavit whether the tenant's son, his widow or daughters are carrying on the tenant's business in the demised shop. 13. The Appellate Authority has held that the landlord has failed to prove that the demised shop, out of all the shops available to the co-sharers/brothers, has been the subject matter of a family partition and fallen to his share. Thus, the Appellate Authority has virtually held that the landlord is not entitled to maintain the present release application for his bona-fide need, because he has not been able to establish that he is exclusively the landlord vis-a-vis the demised shop. In reaching this conclusion of his, the Appellate Authority has gone into unnecessary details about the factum and the validity of a family partition as if it were a title matter between co-sharers. Admittedly, the demised shop, along with a number of others, belonged to the joint family, of which the landlord is a member. The Appellate Authority has held that the burden to prove the factum of partition lay upon the landlord. It has been remarked that though it has been asserted by the landlord that a family settlement has taken place, wherein the demised shop had fallen in his share, the landlord has not mentioned the date, month and year of the settlement. He has not produced any written document or contract evidencing the settlement or a decree of Court. It has then been observed that admittedly, the original owner and landlord of the demised shop was the landlord's grandmother, Chhita Bai, who had instituted proceedings for release against the tenant under Section 21(1)(a) of the Act vide Case No. 95 of 1985. These proceedings ended in compromise with an increase in the rent to Rs. 100/- per mensem. After Chhita Bai's death, her son Chhakilal would become the owner and the landlord. 14. These proceedings ended in compromise with an increase in the rent to Rs. 100/- per mensem. After Chhita Bai's death, her son Chhakilal would become the owner and the landlord. 14. The Appellate Authority has observed that there is no averment when Chhakilal passed away and also that in the landlord's affidavit Paper No. 61A, though it is said that the brothers have mutually partitioned the properties, it is not mentioned whether the settlement/partition took place during the lifetime of their father or after his death. It has also been noticed that Bhagwat Prasad has stated in his affidavit Paper No. 62A that the landlord are five brothers, amongst whom a settlement by word of mouth took place during the lifetime of their father. But, he too does not mention when the father passed away. The Appellate Authority has gone into what seems to be an irrelevant inquiry to say that if the family settlement took place during the father's lifetime, it is not shown or detailed, which property came to the father's share and which of it went to the brothers. The Appellate Authority has also noticed a document from the Commercial Tax Department dated 16.01.2009, which shows that shop No. 192 was registered with them as a general merchant and pharmaceutical store in the name of Bhagwat Prasad, who held TIN number with reference to the said premises. It has been remarked that this document is one created during the pendency of litigation and, therefore, of no worth. Another document paper No. 10A/5, a certified copy of an order by the Assistant Commissioner for the year 1981-82 has been taken note of by the Appellate Authority. Still another certified copy bearing paper No. 117C has been noticed, which shows that the shop bearing No. 192 was registered since 24.09.1982 in the name of Bhagwat Prasad, the landlord's brother. It has been remarked that this document would show that Bhagwat Prasad was recorded with the Labour Department as the owner/occupier of shop No. 192 since the year 1982, but the Appellate Court has reasoned that the family settlement is said to have taken place prior to 1982, which would make it thirty years old. 15. It has been remarked that this document would show that Bhagwat Prasad was recorded with the Labour Department as the owner/occupier of shop No. 192 since the year 1982, but the Appellate Court has reasoned that the family settlement is said to have taken place prior to 1982, which would make it thirty years old. 15. It is then remarked that the landlord's grandmother had instituted proceedings against the tenant for release in the year 1985, which would show that until then, no partition had taken place, but with the Labour Department, the name of Bhagwat Prsad was registered as the occupier of shop No. 192. It has been opined that there is no possibility of a partition by mutual settlement taking place between the brothers ante-dating the time that their grandmother, Smt. Chhita Bai instituted proceedings for release. The conclusions of the Prescribed Authority, based on separate registrations for the brothers in relation to different shops with the Labour Department and Commercial Tax Department to evidence a family settlement or partition, has been held to be flawed by the Appellate Authority on the aforesaid reasoning. 16. This Court must remark at once that the approach of the Appellate Authority is manifestly illegal and perverse. As already remarked, the Appellate Authority has looked into the issue of partition amongst the family members, or so as to speak, a family settlement bringing about an informal partition, as if he were seized of a title matter inter se the co-sharers, involving validity of the partition. The present case is one that is a proceeding for release based on the relationship of landlord and tenant. There is no quarrel about the fact that the tenant does not disown or renounce his character as such. He also does not say that it is not the landlord's family who are the owners and landlords of the demised shop. There is no evidence of an inter se dispute between the co-sharers as to which shop has fallen to whose share. Rather, out of the five brothers, the stand of three is on record in the form of affidavits, indicating that the demised shop has fallen to the share of the landlord in terms of a family settlement. Such family settlements are not very formal affairs and may be transactions continuing over a period of time, where different properties are divided mutually between the various co-sharers. Such family settlements are not very formal affairs and may be transactions continuing over a period of time, where different properties are divided mutually between the various co-sharers. The Prescribed Authority has rightly noted that the tenant too has admitted the fact that he paid rent to the landlord acting on his demand, which shows that he was acknowledged to be the landlord. It is then remarked that the tenant has explained it by saying that a co-landlord is also entitled to receive rent and, therefore, he paid it to him. Later on, when the landlord refused, the tenant deposited it in Court. There is an essence, thus, no quarrel that it is the landlord's family who own the demised shop and now they say that it has been allotted in a family arrangement to the landlord. This fact, so long as there is no co-sharer disputing it, is not at all one that ought to be investigated in proceedings for release. The Appellate Authority ought not to have gone into a hairsplitting evaluation of evidence to determine the factum of partition for the limited purpose of the present proceedings. A landlord under the Act has been defined by Section 3(j) of the Act in the following terms: “3. Definition: In this Act, unless the context otherwise requires: (j) “landlord” in relation to a building, means a person to whom its rent is or if the building, were let would be, payable, and includes, except in clause (g), the agent or attorney, of such person.” 17. Thus, if the landlord has been authorized by the other co-landlords to receive rent with a stipulation that the shop has been allotted to his share, there is no warrant for a Court seized of release proceedings to inquire virtually into the factum and legality of the partition, the manner in which the Appellate Authority has done. This is all the more so, as there is not a hint of an issue between the co-landlords/co-owners about this arrangement/ family partition, where the demised shop has fallen to the landlord's share. In this connection, reference may be made to the decision in Sajal Kumar Jauhari vs. District Judge, Ballia and Others, 2016 SCC Online All. 2541. In the said decision, though in the context of a partition brought about by a Civil Court decree passed in a partition suit, it was observed: “38. In this connection, reference may be made to the decision in Sajal Kumar Jauhari vs. District Judge, Ballia and Others, 2016 SCC Online All. 2541. In the said decision, though in the context of a partition brought about by a Civil Court decree passed in a partition suit, it was observed: “38. The applicants/landlord have come out with the categorical submission that the accommodation which is described in schedule of the release application came in their share by virtue of the Civil Court decree dated 7.9.2002 passed in a partition suit filed by the co-owners. No exception of it can be taken in a rent control proceeding either by the appellate court or by this court. Moreover in the additional written statement filed by the petitioner, there is no averment that the disputed accommodation is owned by the heirs of Gopal Das Mishra or the petitioner paid rent to Gopal Das Mishra or his heirs at any point of time. Admittedly the petitioners are occupying the disputed accommodation as tenant, they, therefore, cannot question the title of the co-owners without disclosing the name of the actual owner or the landlord. The petitioner cannot be allowed to challenge the Civil Court decree on the ground that it was obtained in a collusive suit. No other co-owner has come forward to object the release.” 18. For the worst, assuming that no partition has taken place, it is not the case here that the property does not belong to the joint family comprising the five brothers or that the landlord is not one of the co-owners. If, therefore, for the need of the landlord, the other co-owners have stood by him and supported his case for release on the ground of bona-fide need, it does not lie in the tenant's mouth to question the right of the landlord to seek release of the demised shop by importing a title dispute into proceedings for eviction. The approach of the Appellate Authority in holding against the landlord with reference to non-establishment of the factum of partition, therefore, cannot be countenanced. The issue whether the tenant or his family members have acquired the shop within the municipality of Jhansi is really not of much consequence. The approach of the Appellate Authority in holding against the landlord with reference to non-establishment of the factum of partition, therefore, cannot be countenanced. The issue whether the tenant or his family members have acquired the shop within the municipality of Jhansi is really not of much consequence. The way the Prescribed Authority has approached the matter, it is evident that the tenant's son is doing business in a shop located in the Sarrafa Bazar, which is a three-storeyed shop purchased in the name of his wife. The Prescribed Authority has reasonably concluded that the tenant's son is a member of his family and it would lead to deemed vacancy generally, unless certain particular facts are proved. But this Court is not minded to go into those facts. Even if the tenant has no alternative shop in the municipality of Jhansi, it cannot stand to defeat the landlord's right to release if his case of a bona-fide need is established. 19. So far as question of bona-fide need is concerned, the Appellate Authority has remarked that the landlord has not mentioned in his application for release, the number of the shop wherein he does business along with his brother, Bhagwat Prasad, though he has said that Bhagwat Prasad has threatened him with dispossession. It has been remarked that the tenant has averred that the landlord carries on the business of a grocer and trade in acid in shop No. 192, and besides that, also does wholesale trade and retail in spices and dry fruits from his house No. 42/1, Gopal Nikhra, Gola Kunwa, Jhansi. It is remarked that in the later affidavit filed by the landlord, it has been accepted that he does joint business with his brother Bhagwat Prasad in shop No. 192 and it is this shop which he is being asked to vacate by his brother, Bhagwat Prasad. About these allegations, the Appellate Authority has disbelieved paper No. 109/4 dated 16.01.2009, which is a registration certificate issued by the Commercial Tax Department as a document created during litigation. The said document shows Bhagwat Prasad's name as the proprietor of the business in shop No. 192. About these allegations, the Appellate Authority has disbelieved paper No. 109/4 dated 16.01.2009, which is a registration certificate issued by the Commercial Tax Department as a document created during litigation. The said document shows Bhagwat Prasad's name as the proprietor of the business in shop No. 192. Another document, paper No. 109/5, which has been issued by the Assistant Labour Commissioner and is a registration certificate of the year 1982 in the name of Bhagwat Prasad with reference to shop No. 192, has been discarded by saying that at that time, the parties' grandmother, Smt. Chhita Bai was the owner and the landlord. It is very strained logic that these documents have been disbelieved to infer that Bhagwat Prasad does not do business in Shop No. 192. 20. It must be remarked that in a family, that has a number of young men needing employment, assignment of commercial premises is often informal to begin with, which later on is scripted and converted to a formal settlement and division. Assuming that in the year 1985, the landlord's grandmother was alive, the fact that his brother Bhagwat Prasad was recorded with the Assistant Labour Commissioner as the occupier of shop No. 192 would show that the shop indeed is one where Bhagwat Prasad does business and not the landlord. The further finding recorded by the Appellate Authority that there are some receipts that show that the landlord does business in shop No. 192 are no more than receipts of some transactions of purchase of goods. These receipts are not incompatible with the landlord's case of doing business in shop No. 192 along with his brother. 21. The other facet on which the landlord's need has been held not to be genuine is the business and trade in spices and dry fruits done from the landlord's home. It is well settled that business done from home, under compelling circumstances, does not lead to effacement of bona-fide need of the landlord for business premises. Of course, this is not to say that the landlord indeed does business from home, about which too, perverse conclusions have been drawn. Those conclusions are also based on some documents about purchase of goods relating to trade, where the landlord's address indicated is that of his home, situate in Nikhri Bazar, Gola Kunwa, Jhansi. Of course, this is not to say that the landlord indeed does business from home, about which too, perverse conclusions have been drawn. Those conclusions are also based on some documents about purchase of goods relating to trade, where the landlord's address indicated is that of his home, situate in Nikhri Bazar, Gola Kunwa, Jhansi. It is again a perverse conclusion to draw that an address mentioned on some document of purchase of goods can lead to the inference about the premises being used for business. 22. A trader can purchase goods giving out his residential address for reason of convenience or any other exigency. On that basis alone, to infer that the residential premises are used for business purposes, is most illogical. The Prescribed Authority, on the other hand, has done a complete survey of the shops available to the family comprising the five brothers and the sons of Bhagwat Prasad, who are in the working age group. The complete availability of the shops with their location and the business done by the five brothers has been recorded by the Prescribed Authority to support his finding that the landlord has no other shop but the demised shop to establish his independent business in. The Prescribed Authority has also noted the fact that one of the brothers of the landlord, Arun Gupta is pursuing litigation to get his shop vacated. The Prescribed Authority has clearly found on the basis of relevant evidence, that the landlord's brother, Bhagwat Prasad carries on his business in shop No. 192 and the demised shop i.e. shop No. 193 alone is available to the landlord to set up his independent business. 23. It is well settled that every adult member of the family is entitled to establish his independent business and if the family have a property where that need can be satisfied, moreso if the particular member holds that property, it ought to be released in favour of that person, who does not have premises to establish and run his independent business. In this connection, reference may be made to the decision of the Supreme Court in Mohd. Ayub and Another vs. Mukesh Chand, (2012) 2 SCC 155 , where it has been held: “15. It is well-settled that the landlord's requirement need not be a dire necessity. In this connection, reference may be made to the decision of the Supreme Court in Mohd. Ayub and Another vs. Mukesh Chand, (2012) 2 SCC 155 , where it has been held: “15. It is well-settled that the landlord's requirement need not be a dire necessity. The Court cannot direct the landlord to do a particular business or imagine that he could profitably do a particular business rather than the business he proposes to start. It was wrong on the part of the District Court to hold that the appellants' case that their sons want to start the general merchant business is pretence because they are dealing in eggs and it is not uncommon for a Muslim family to do the business of non-vegetarian food. It is for the landlord to decide which business he wants to do. The Court cannot advise him. Similarly, length of tenancy of the respondent in the circumstances of the case ought not to have weighed with the Courts below.” 24. In the circumstances, this Court is of opinion that the Prescribed Authority has rightly found for the landlord on the issue of bona-fide need and the Appellate Authority has disturbed that finding in manifest error, doing injustice to the landlord. 25. The last issue that remains to be dealt with is about the comparative hardship. Much has been made for the fact that the tenant has attempted to search alternative accommodation, but could not find one. The Prescribed Authority has commented on the case of the tenant on this score that though there is an averment that the tenant has looked for alternative accommodation, no particulars about where, when and which premises were the subject matter of efforts by the tenant to secure on rent pending these release proceedings have been furnished. The Prescribed Authority thought that the averment is only a formality and this Court is of the same opinion. There are no two conclusions possible on this count. 26. Quite apart, some developments have taken place pending this petition. The tenant, who was an old man, has passed away pending this petition. The demised shop being a commercial accommodation, all his heirs have been impleaded. Now, his son has already been found to be well settled in business and he has a three-storeyed shop located in Sarrafa Bazar, Jhansi. He, therefore, would not suffer any hardship by an order of eviction. The demised shop being a commercial accommodation, all his heirs have been impleaded. Now, his son has already been found to be well settled in business and he has a three-storeyed shop located in Sarrafa Bazar, Jhansi. He, therefore, would not suffer any hardship by an order of eviction. Nothing has been placed on record to show that the tenant's son or the other three heirs, that is to say, his two daughters and widow has taken over his business in the demised shop. 27. The principle, that subsequent events can be taken note of in proceedings for release, has the approval of the Supreme Court in Ram Kumari Barnwal vs. Ram Lakhan (Dead), 2007 (68) ALR 136. In Ram Kumari Barnwal in the context of eschewing a course of remand, where release proceedings had been pending for long, it was observed by the Supreme Court about cognizance of subsequent events thus: “4. Learned Counsel for the appellant submitted that the approach of the High Court is clearly erroneous. It is settled position in law that subsequent events can be taken note of. The High Court, even though referred to the relevance of the subsequent events erroneously came to the conclusion that even if the judgment and order passed by the Courts below are erroneous in law, the matter will have to be remanded to the Prescribed Authority. There is no such requirement in law. In fact, after noticing that the release application was filed about quarter of century back, it is really unfortunate that the High Court instead of deciding the matter dismissed the writ petition granting liberty to file fresh release application. In other words, instead of shortening litigation the High Court's order would mean unnecessary prolongation of litigation.” 28. In the result, this petition succeeds and is allowed with costs. The impugned order passed by the Appellate Authority/Additional District Judge/Special Judge (E.C. Act), Jhansi in Rent Control Appeal No. 15 of 2009 is hereby quashed. The order of the Prescribed Authority/Judge, Small Cause Courts, Jhansi dated 22.09.2009 in P.A. Case No. 63 of 2007 is restored. The tenant represented by his heirs, that is to say, respondent nos. The impugned order passed by the Appellate Authority/Additional District Judge/Special Judge (E.C. Act), Jhansi in Rent Control Appeal No. 15 of 2009 is hereby quashed. The order of the Prescribed Authority/Judge, Small Cause Courts, Jhansi dated 22.09.2009 in P.A. Case No. 63 of 2007 is restored. The tenant represented by his heirs, that is to say, respondent nos. 1/1, 1/2, 1/3 and 1/4 to this petition shall handover vacant possession of the demised shop to the landlord within a period of three months of the date of this judgment, subject to the condition that they execute an undertaking with the Prescribed Authority within a month carrying the following terms: (i) The tenants shall handover peaceful and vacant possession of the demised shop to the landlord. (ii) During the aforesaid period of time, the tenants will not sub-let the demised shop or permit any third person to occupy it. (iii) During the aforesaid period of three months, the tenants shall not damage or disfigure the demised shop in any manner. 29. In the event an undertaking is not filed on affidavit within a month in the above terms, the release order passed by the Prescribed Authority shall become executable forthwith.