S.U. Khan, J.

1. This is landlords writ petition arising out of eviction/release proceedings initiated by him against tenant Rameshwar Dayal since deceased and survived by Respondents 3 to 9 on the ground of bona fide need under Section 21 of U. P. Act No. 13 of 1972 in the form of P.A. Case No. 9 of 1984. Prescribed Authority/Munsif, Pilibhit through judgment and order dated 10.5.1985 dismissed the release application against which Petitioner filed R.C. Appeal No. 35 of 1985 which was also dismissed by II Ird Additional District Judge, Pilibhit on 12.1.1989, hence this writ petition.

2. Property in dispute is a shop purchased by the Petitioner on 21.10.1980 and release application was filed by him after serving six months notice. In the release application it was stated that landlord Petitioner was doing business of selling paan (betel leaves) along with his father and he wanted to establish his independent business. The tenant filed written statement and pleaded therein that a shop of Nagar Palika was in tenancy occupation of the father of the landlord and landlord was doing business from the said shop along with his father (para 2 of the judgment of the Prescribed Authority and para 3 of judgment of the lower appellate court). The prescribed authority had also held that notice was not valid. This point was reversed by the appellate court. The appellate court in para 17 of its judgment held that as additional evidence, documents pertaining to O.S. No. 40 of 1984, Mohd. Arif v. North East Railways and Ors. O.S. No. 40 of 1984, had been filed which proved that in the shop which was let out by Municipal Board to the father of the landlord, only landlord was carrying on business as the said suit pertained to damages for loss of consignment which was meant for the business carried out from the said shop. Lower appellate court concluded that in case father of the Petitioner was carrying on the business from the said shop then he should have been Plaintiff in O.S. No. 40 of 1984.

3. If a person is doing business along with his father then it cannot be said that his need to establish independent business is not bona fide vide Sushila v. A.D.J. : AIR 2003 SC 780 [LQ/SC/2002/1342] and A. Kumar v. Mustaquim : AIR 2003 SC 532 [LQ/SC/2002/1314] .

4. The inference drawn by the appellate court from the documents pertaining to O.S. No. 40 of 1984 was also not warranted. If father and son are carrying on business the suit for damages can be filed only by son. In any case it will not make much difference. The shop from where the said business is being carried out is on rent either with the landlord-Petitioner or with his father. Availability of a rented shop to the landlord can never be a ground for holding the need to start business from his own shop as not bona fide vide G.K. Devi v. Ghanshyam Das : AIR 2000 SC 656 [LQ/SC/2000/74] and Dhanna Lal v. Kalawati Bai : AIR 2002 SC 2572 [LQ/SC/2002/660] (para 26).

5. During pendency of proceedings before the court below the tenant died and his widow, sons and daughters were substituted. The widow only stated that the family members were carrying on the business from the shop in dispute. However it was not stated that which family member was doing business from the shop in dispute. Even otherwise neither the original tenant nor after his death his legal representatives brought on record anything to show that after filing of the release application they had made any effort to search alternative accommodation. This by itself was sufficient to decide the question of comparative hardship in favour of the landlord (Vide B.C. Bhutada v. G.R. Mundada : AIR 2003 SC 2713 [LQ/SC/2003/44] ).

6. Accordingly I hold that judgments and orders passed by both the courts below on the question of bona fide need and comparative hardship are patently erroneous in law and liable to be set aside. Landlord fully proved the bona fide need. Balance of hardship also lay in his favour.

7. When both the courts below have rejected the release application of the landlord and judgments are found to be erroneous in law by writ court, matter is normally remanded. However, that formula is not to be necessarily followed in every case particularly when the matter is pending for long. Release application in the instant case was filed in the year 1984 and this writ petition is pending since 1989. The Supreme Court in G. C. Kapoor v. N. K. Bhasin, : 2002 (1) AWC 73 (SC): AIR 2002 SC 200 [LQ/SC/2001/2663] , allowed the release application outrightly which had been rejected by the Prescribed authority, lower appellate court as well as High Court. In my opinion it is a fit case where ultimate relief shall be granted to the landlord. Supreme Court has also held in R.E.V. Gounder v. V.V.P. Temple, : 2004 ACJ 304 [LQ/CalHC/2003/155] and R. C. Kesharwani v. Dwarika Prasad 2002 (2) ARC 298 (SC), that when the matter is pending for long, remand must be avoided. Supreme Court in its authority in Shail v. Manoj Kumar, 2004 ACJ 1213, placing reliance upon Surya Dev Rai v. R. C. Rai, : 2003 (6) SCC 675 [LQ/SC/2003/758] , has held that in exercise of writ jurisdiction High Court has the jurisdiction also to pass itself such a decision or direction as the inferior court or Tribunal should have made.

8. Accordingly I find that impugned judgments and orders are erroneous in law. Writ petition is allowed. Both the impugned judgments and orders are set aside. Release application filed by the landlord is allowed. However, as no one appeared on behalf of tenant Respondent hence before issuing writ of possession (parwana dakhal) on the execution application under Section 23 of thewhich may be filed by the landlord in pursuance of this judgment Prescribed Authority must ensure service of notice upon tenants / contesting Respondents 3 to 9.