IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 2078 of 2010 Dr. Neeraj Sardana and another ..… Petitioners Versus Addl. District Judge/FTC-6, Derhadun and others ..… Respondents Ms. Neelima Mishra, the learned counsel assisted by Mr. Neeraj Garg, the learned counsel for the petitioner. Mr. B.P. Nautiyal, the learned counsel for the respondent. Hon’ble Tarun Agarwala, J. Heard Ms. Neelima Mishra, the learned counsel assisted by Shri Neeraj Garg, the learned counsel for the petitioners and Shri B.P. Nautiyal, the learned counsel for the opposite parity. This is a tenants petition against the order of the lower appellate court whereby applications 55-A and 65-A were rejected on the ground that the petitioners are trying to scuttle the proceedings and delay the hearing of the appeal. The fact leading to the filing of the writ petition is, that the land lady/opposite party filed an application u/S 21 (1) (a) of the U.P. Act No. 13 of 1972 on the ground of personal need in order to establish and set up a business for her husband. This release application was instituted in the year 2003 and was allowed by the Prescribed Authority in the year 2007. The Prescribed Authority found that there is a bonafide and genuine need and, accordingly, directed the tenants to vacate the premises in question. The tenant, being aggrieved by the order of the Prescribed Authority, filed an appeal in the year 2007 which has remained pending since then. When the matter became ripe for hearing, two applications were filed. Application 55-A was filed for additional evidence to bring on record certain documents to show that the land lady’s husband was still working and was gainfully employed and, therefore, the evidence was filed in order to prove that there was no bonafide need. The second application 65-A was filed 2 praying that a spot inspection be made in the premises in question in order to find out as to whether the tenants are running their clinic or not. Both the applications were rejected by the trial court on the ground that this was another attempt to delay the proceedings. The court also observed that the fact as to whether the land lady’s husband was doing business or not was immaterial to the question of bonafide need and that during the pendency of the proceedings if the husband of the land lady was doing a temporary business, that would not wipe out the bonafide need. The application for spot inspection was rejected on the ground that it was immaterial as to whether the tenants are running their clinic or not. The tenant, being aggrieved by the aforesaid order, has preferred the present writ petition. Having heard the learned counsel for the parties, the court is of the opinion that the application 65-A for spot inspection is patently erroneous. The release application is required to be decided on affidavits and it is not at all necessary that a spot inspection is required to be made in order to ascertain the character of the premises in question or in order to find out as to whether the tenants are carrying on their business. The only essential requirement is that the premises is occupied by the tenant which the petitioners admit and, consequently, nothing further is required to be seen as to whether the tenant is carrying on their business or not. In view of the aforesaid, the application 65-A for a spot inspection was patently erroneous and was rightly rejected by the lower appellate court. With regard to the filing of the application for additional evidence, the Court is of the opinion that in the interest of justice, the additional evidence should have been allowed by the lower appellate court, and the reason is, that the petitioners are trying to put forward their claim that the finding of the Prescribed Authority on bonafide need is incorrect on the ground that the husband of the 3 land lady is gainfully employed and, therefore, the husband has no need for setting up a business from the premises in question. Once, a prima-facie case is made out, the additional evidence should have been taken on record and the documents could be tested alongwith the submission at the stage of the hearing as to whether the husband’s needs were bonafide or not or the fact that the husband of the land lady was gainfully employed on a temporary basis in order to tide over the problems during the interim period or he was gainfully employed in a permanent capacity are questions which are required to be dealt with by the lower appellate court. In the light of the aforesaid, the Court is of the view that the additional evidence should have been taken on record in the interest of justice. Consequently, the order of the lower appellate court rejecting the application 55-A is not correct. The impugned order to that extent is set aside. The writ petition is partly allowed. The lower appellate court is directed to take the additional evidence on record on payment of cost of ` 5,000/- which the petitioners will deposit before the lower appellate court within two weeks from today. The amount so deposited can be withdrawn by the land lady/opposite party without furnishing any security. The court further directs that any objection/rebuttal may be filed by the landlord / opposite party within two weeks thereafter. Since the appeal is of the year 2007, the Court directs the lower appellate court to decide the appeal after hearing the parties on merit on or before 15th February, 2011. (Tarun Agarwala, J.) Dated 23rd December, 2010 Shiv