JUDGMENT S.P. Mehrotra, J.
1. This writ petition has been filed by the petitioners under Article 226 of the Constitution of India, inter alia praying for quashing the order dated 2.11.2002 (Annexure-14 to the writ petition) passed by the Additional District Judge (Court No. 9), Saharanpur in a Rent Control Appeal No. 177 of 1993 and the order dated 5.11.1993 (Annexure-11 to the writ petition) passed by the Prescribed Authority/lst Additional Civil Judge, Saharanpur in P. A. Case No. 21 of 1990.
2. The dispute relates to a shop situated in Qutub Sher, district Saharanpur, the details whereof have been given in the release application referred to hereinafter. The said shop has hereinafter been referred to as the "disputed shop".
3. It appears that the respondent Nos. 1 to 4 filed a release application under Section 21 (1) (a) (b) of the U. P. Act No. XII! of 1972 (in short "the Act") in respect of the disputed shop against Mohd. Yaseen, predecessor-in-interest of the petitioners for the release of the disputed shop. By the release application, release of shop marked ^^v** in the release application in the said premises under tenancy of Krishna Lal Madan and the release of shop marked ^^l** in the release application in the said premises under tenancy of Mohd. Haroon were also sought. The said release application was registered as P.A. Case No. 21 of 1990. (A copy to the said release application has been filed as Annexure-1 to the writ petition). The said release application was contested by the said Mohd. Yaseen as well as Krishna Lal Madan and Mohd. Haroon.
4. By the judgment and order dated 5.11.1993 (Annexure-11 to the writ petition) passed by the learned Prescribed Authority/Additional Civil Judge, Saharanpur, the said release application was partly allowed as against Krishna Lal Madan in respect of shop marked ^^v** in the said release application and against Mohd. Yaseen, predecessor-in-interest of the petitioner in respect of the disputed shop. However, the said release application was dismissed as against the said Mohd. Haroon in respect of the shop marked ^^l** in the release application.
5. Against the said judgment and order dated 5.11.1993, the said Mohd. Yaseen filed an appeal under Section 22 of the Act which was registered as Rent Control Appeal No. 177 of 1993. The said Krishna Lal Madan also filed an appeal under Section 22 of the Act which was registered as Rent Control Appeal No. 178 of 1993. During the pendency of the said Rent Control Appeal No. 177 of 1993, the said Mohd. Yaseen expired and the petitioners were substituted as his heirs and legal representatives.
6. By the judgment and order dated 2.11.2002, learned Additional District Judge (Court No. 9), Saharanpur, dismissed the said Appeal No. 177 of 1993 and affirmed the order dated 5.11.1993 passed by the learned Prescribed Authority/lst Additional Civil Judge, Saharanpur, in regard to the disputed shop.
7. However, by the said judgment and order dated 2.11.2002, the said Appeal No. 178 of 1993 filed by the said Krishna Lal Madan was allowed and the order dated 5.11,1993 passed by the learned Prescribed Authority in regard to shop marked ^^v** in the release application was set aside.
8. Thereafter, the petitioners have filed the present writ petition.
9. I have heard Sri Ravi Kant, learned senior advocate assisted by Sri Mohd. Arif for the petitioners and Sri A. A. Ansari, learned counsel for the respondent.
10. Sri Ravi Kant, learned senior counsel submits that during the pendency of the said Appeal No. 177 of 1993, landlords-respondents, by the registered sale deed dated 5.8.1996 (Annexure-13 to the writ petition), sold the Shop No. 14/388/1, Qutub Sher, district Saharanpur, which was occupied by one Bhure in favour of Naushad Ahmad. Therefore, the contention proceeds, the deed set up by the landlords-respondents in the release application was not bona fide. It is submitted that had the deed of the landlords-respondents been bona Jide, there was no occasion to sell the said shop during the pendency of the said Appeal No. 177 of 1993.
11. Sri Ravi Kant, learned senior counsel further pointed out that in the said sale deed dated 5.8.1996 (Annexure-13 to the writ petition), it is recited that the vacant possession was being given to vendor of the said sale deed, therefore, the case set up by the landlords-respondents that the said shop had not been vacated by Bhure was evidently not correct. It is further submitted that the burden of proof that shop which was in occupation of Bhure was not vacant and the release application in respect of the same had been directed was on the landlords-respondents.
12. I have considered the submissions made by Sri Ravi Kant, learned senior counsel for the petitioners and I find myself unable to accept the same. The appellate authority in the said judgment and order dated 2.11.2002 (Annexure-14 to the writ petition) considered the fact of sale deed having been executed by the landlords respondents in respect of the said Shop No. 14/388/1, Qutub Sher, Saharanpur.
13. A perusal of the said Judgment and order dated 2.11.2002, shows that it was asserted on behalf of the petitioners that the said Shop No. 14/388/1 Qutub Sher, district Saharanpur had been sold by the landlords-respondents after getting the same vacated by the said Bhure, tenant in the said shop. On the other hand, it was asserted by the landlords respondents that the said Shop No. 14/388/1 which was in occupation of Bhure had been sold as the said Bhure, the tenant, was not vacating the said shop, and the release application for getting the said shop released had been dismissed and that the said shop was sold for fulfilling the financial needs of the landlords respondents, considering the same to be the only alternative in the circumstances.
14. I have considered the submissions made by both the sides and perused materials on record. The Additional District Judge (Court No. 9) Saharanpur (Appellate Authority) accepted reasons given by the landlords-respondents) for executing the said sale deed in respect of the said Shop No. 14/388/1. The said findings recorded by the appellate authority on consideration of materials on record are findings of fact. No interference is called for with the said findings in the exercise of writ jurisdiction under Article 226 of the Constitution of India. No illegality or perversity has been committed by the appellate authority in recording the said findings.
15. A perusal of the recitals in the sale deed dated 5.8.1996 (Annexure-13 to the writ petition) shows that the said recitals are the usual recitals in the sale deed in regard to delivery of possession of the property being sold. Therefore, the submissions made by Sri Ravi Kant, senior advocate cannot be accepted as the said recitals do not establish that Bhure, tenant had vacated the said shop. The findings recorded by the prescribed authority as well as the appellate authority on the question of bona fide need and comparative hardships are findings of fact. No interference is called for with the said findings in the exercise of writ Jurisdiction under Article 226 of the Constitution of India unless the said findings are shown to be patently illegal or perverse. No illegality or perversity has been committed by the authorities below in recording the said findings on consideration of materials on record.
16. In view of the aforesaid discussion, I am of the opinion that this writ petition takes merits and the same is liable to be dismissed. The writ petition is accordingly dismissed.
17. Sri Ravi Kant, learned senior counsel for the petitioner has then submitted that some time may be granted to the petitioner for vacating the disputed shop.
18. Heard Sri Ravi Kant, learned senior counsel for the petitioners and Sri A. A. Ansari, for respondent Nos. 1 to 4 on this question. Having considered the facts and circumstances of the case, it is directed that the petitioners will not be evicted from the disputed shop till 31.3.2003 provided the petitioners give joint undertaking on their personal affidavit within one month from today incorporating the following conditions :
(1) The petitioners will vacate the disputed shop on or before 31.3.2003 and will hand over its peaceful, vacant possession to the respondent Nos. 1 to 4, (2) The petitioners will continue to pay rent/damages in respect of the disputed shop till the date of vacating the same.
In case the aforesaid undertaking is not given within the time granted or any of the conditions incorporated in the undertaking is not complied with, this order granting time to the petitioners will stand automatically vacated and it will become open to the respondent Nos. 1 to 4 to execute the release order forthwith.