A.K. YOG, J.

Raj Kumar Gupta tenant of Shop No. 74, Rakesh Marg, Ghaziabad at the rate of Rs. 305/- per month has filed this petition challenging impugned judgment and order dated 08th July 1999 (Annexure-19 to the writ petition) passed by Vth Additional District Judge, Ghaziabad as well as judgment and order dated 12th February, 1999 (Annexure-11 to the Writ Petition) passed by Prescribed Authority, Ghaziabad (Respondent No. 2).

2. Prescribed Authority rejected the release application (registered as P. A. Case No. 26 of 1994 Shri Bhagmal and another v. Ajay Kumar Gupta (Annexure-1 to the Writ Petition) filed by the tenants.

3. Rent Appeal No. 31 of 1999 under Section 22, U. P. Urban Buildings (Regula tion of Letting, Rent and Eviction) Act, 1972 (U. P. Act No. XII1 of 1972) (for short called the Act) filed by Raj Kumar Gupta was dismissed. Both the Courts below con currently held that the need of the landlord was bona fide and comparative hardship likely to be suffered by landlord, on rejec tion of release application, will be more than the hardship likely to be suffered by the tenant if release application was al lowed.

4. Shri A. K. Sand, Advocate, repre senting petitioner submitted that the find ing on the question of bona fide need was vitiated in as much as none of the two Courts below recorded specific and categorical

finding on the tenants pleas that landlord had another Premises No. 585 wherein he had constructed shops and one of the said shops was available in vacant condition;

5. In support of his submission learned counsel for the petitioner referred to Paragraph 33 of the written statement (particular pages 41-42 of the Writ Paper Book), Paragraph 10 of the affidavit of Raj Kumar Gupta-petitioner (Annexure-9 to the Writ Petition) (particular page 80 of the Writ Paper Book) Paragraph 2 of Addi tional Affidavit of Raj Kumar Gupta (An-nexure-12 to the Writ Petition), Memorandum of Rent Appeal No. 31 of 1999-Ground 2 (Annexure-13 to the Writ Petition) - (particular page 114of the Writ Paper Book) and the impugned judgment of the Appellate Court dated 08th July 1999 (Annexure49 to the Writ Petition) - (particular Page 137 of the Writ Paper Book) to show |hat petitioner has been throughout urging and raising his grievance with respect to the Premises No. 585, but both tie Courts below, though referred to the said premises in the early part of their judgment, but ignored to record specific finding as to why the case of the tenant in respect of the said premises was not acceptable.

6. Learned counsel for the petitioner submits that, in absence of categorical finding with regard to Premises No. 585, approach of the] Court below in allowing release application has been vitiated inas much as a favourable finding in favour of the tenant- petitioner on the point can very well change the ultimate decision in the case.

7. Sri B. D. Mandhyan, Advocate rep resenting contesting Respondent Nos. 3 and 4 submits that absence of a categorical finding can be attributed to the fact that the petitioner did not take the said plea before the Courts below. As already indi cated above, the conduct of the petitioner shows he has been raising the said plea throughout at all relevant stages and it is not possible to draw inference that said plea was not raised and pressed before the Courts below.

8. Perusal of the judgment passed by Prescribed Authority (Annexure-11 to the Writ Petition) shows that it did refer to the plea and the concerned affidavit of respec tive parties with respect to Premises No. 585 but it did not discuss and record reasons or the conclusion for not taking into account Premises No. 585 wherein tenant claimed that a vacant shop was available to the landlord.

9. The contention of the petitioner has force. Relevant discussion starts from middle of page 102 of the Writ Paper Book. Before it there is reference to the pleadings and the affidavit filed by respec tive parties. The judgment of the Prescribed Authority after middle of page 102 shows that it has not applied its mind with respect to Premises No. 585. Similar is the position if one goes through the judgment of

the appellate Court (Annexure-19 to the Writ Petition). The Ap pellate Court has taken note of Premises No. 585 in its judgment (particular page 137 of the Writ Paper Book) but there is no reference to the said Premises while in the later part of judgment, which contains discussion and conclusion (i. e. particular page 139 onwards of the Writ Paper Book), the learned counsel for the con testing Respondents failed to show the discussion by any of the two Courts below with regard to Premises No. 585.

10. Learned counsel for the respon dent however, referred to the findings recorded by the two Courts below and submitted that landlord had no shop avail able with him. Comparative hardship was likely to be caused more to the landlord in case of rejection of release application. The submission made by learned counsel for the respondents cannot be of any avail to the contesting respondents inasmuch as the findings recorded by the two Courts below in ignorance of specific plea raised and that too in regard to another accom modation namely Premises No. 585 wherein, according to the tenant he had a shop. The issue goes to the root of the matter and it cannot be said that due to failure of recording of finding on the said point prejudice has not been caused to the tenant-petitioner.

11. It may be mentioned that petitioner has not shown any manifest error apparent in respect of findings with regard to other accommodations. Judg ment of the appellate Court cannot inter fered with except that Court below should also record a specific finding with respect to Premises No. 585 and consider the ef fect of its finding on the ultimate decision. In case finding on this point goes against the tenant, the final decision of the two Courts below shall remain the same, but in case the finding on the other issue is against the landlord, the lower appellate Court may determine the consequences thereof and decide the appeal accordingly.

12. Learned counsel for the petitioner submits that appellate Court had made certain observations with respect to the document filed by him and said observations are against the record. Without going into the merits of the sub mission, it will be open for the petitioner to demonstrate such mistake, if any, before the lower appellate Court, which shall decide the same and determine its effect as well.

13. The writ petition stands allowed subject to the observations made above. The appellate authority/respondent No. 1 shall decide Rent Control Appeal No. 31 of 1999 (Ajay Kumar Gupta v. Shri Bhagmal and another) within three months of filing of a certified copy of this judgment in the light of the observations made above.

Petition allowed.