Gopal Sharma and Others vs XI Vth Additional District Judge and Others

Prakash Krishna, J.—This writ petition was heard alongwith Writ Petition No. 3395 of 1985, between the same party, but it was thought desirable to deliver a separate judgment in the present writ petition since the issues raised in the two petitions are different.

The Petitioners are the tenants of a shop, bearing four Numbers i.e., 147, 158, 159 and 160, situate at Lajpat Rai Market (New Market) Begum Bridge, Meerut. The Respondents No. 2 and 3, Desh Raj Chugg and Mohit Kumar are the owners and landlords of the said shop which was purchased by them on 31.8.1984. Satya Pal Sharma, the father and predecessor-in-interest of the Petitioners was the original tenant of the said shop, who died on 6.12.1986.

An application for release, u/s 21(1)(a) of U.P.Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P.Act No. 13 of 1972), was filed by Desh Raj Chugg and Mohit Kumar, Respondents No. 2 and 3 herein (hereinafter referred to as the ''landlord'') against the present Petitioners, on the allegations that the shop in question is bona fide required by the landlord who purchased it after taking voluntary retirement from service. The landlord, Desh Raj Chugg was in service of Tele Communication Department and was permitted to retire voluntarily. The need set up was that the disputed shop is required for the need of the landlord, namely, Desh Raj Chugg and his elder son, Ravindra Kumar to establish a business of general provisions in the disputed shop as both of them were unemployed and unengaged. In the release application it was further stated that the tenancy of original tenant, Satya Pal Sharma (since deceased) was already terminated on the ground of subletting and the matter is engaging attention of the High Court in Writ Petition No. 3395 of 1985 (the connected writ petition). In Para 10 of the release application it was stated that the tenant had sublet the disputed shop to M/s. Carona Sahu Company Ltd. and the said Company was impleaded as opposite party No. 7 in the release application and is Respondent No. 4 herein.

The release application was contested on number of pleas, but the relationship of landlord and tenant between the parties was admitted. It was pleaded that the need of the landlord is not bona fide and genuine as Smt. Prakash Kumari wife of Desh Raj Chugg, the landlord is running a big factory in the name and style of M/s. Steel Era Combined Industry wherein her son Ravindra Kumar, whose need was set up in the release application, is working and looking after the business of his mother. It was further stated that the landlord, Desh Raj Chugg is running P.C. Os. and has Agency businesses of insurance company and of Unit Trust of India. He is also carrying on the business in the name and style of M/s. Suman Enterprises. He has got huge rental income. The fact that the tenant has sublet the disputed accommodation to M/s. Carona Sahu Company Ltd. was disputed by them and it was stated that in a part of the tenanted accommodation, they are carrying on the business of selling shoes and footwears manufactured by M/s. Carona Sahu Company Ltd. as its Agent and in the rest of the accommodation they are carrying on their separate business.

The parties led evidence in support of their respective cases. The prescribed authority by its judgment and order dated 21.1.1991, rejected the release application on the finding that the landlord is a rich man and is doing business and his son is also engaged in the business of his mother. The elder son, Ravindra Kumar has married and well established and as a matter fact, the landlord purchased the shop by way of a registered deed even at the time when he was in service and was running a factory in the name of his wife. The explanation given by the landlord that Ravindra Kumar is looking after the business of his mother as stop gap arrangement and was subsequently engaged in service was rejected on the ground that "it appears that now Ravindra Kumar is doing service and after marriage he is well settled. In this regard no affidavit of Ravindra Kumar himself has been filed. It is also not stated by the applicants that how much approximate income the applicants could earn from the business of General Merchant and what salary at present Ravindra Kumar is drawing from his alleged stop gap arrangement service....

As regards the plea regarding rental income of the landlord is concerned, it was found that the landlord, Desh Raj Chugg is earning Rs. 18,000 per month and out of it he is paying Rs. 13,500 per month towards the advance money taken from M/s. Dunlop India and is getting only Rs. 4,500 per month. The cheque is prepared in the name of M/s. Suman Enterprises. The said property is situate at Delhi Road, as found by the prescribed authority. The prescribed authority also observed that there is a big Industry in the name and style of M/s. Steel Era Combined Industry which manufactures tankers etc. and the said Industry is in the name of the wife of the applicant No. 1, Smt. Prakash Kumari wherein her son is doing service, by way of stop gap arrangement as pleaded by the wife of the landlord. He concluded that taking into account the overall facts into consideration, the financial status of the landlord is very sound and the landlord is doing independent business in the name and style of M/s. Suman Enterprises and is earning rental income.

On the question of comparative hardship and subletting of the disputed shop to M/s. Carona Sahu Company Ltd. although the pre11:56 AM 12/4/201011:56 AM 12/4/201011:56 AM 12/4/2010ribed authority noticed the contention of the landlord that at present Hari Bhoj Restaurant is being run not by the tenant, but by one person, namely, Onkar Dutt Sharma whose name appears on the invitation card on inauguration ceremony of the said business, the prescribed authority refused to go further in depth on the ground that the need of the landlord has not been found bona fide and if the release application is rejected, then the landlord may be deprived from earning some more money from the future business or from letting out the shop on higher rent to some other person, while on the other hand, the tenants have no other income except from the business in the disputed shop.

The aforesaid order was subject-matter of Misc. Appeal No. 83 of 1991 filed by the landlord which came up for consideration before the court below. The appellate court taking into consideration the pleadings of the parties, evidence on record and the respective submissions of the learned Counsel for the parties, allowed the appeal by the impugned order dated 14.7.1993 and, after reversing the findings recorded by the prescribed authority, has held that the shop in dispute is bona fide required by the landlord and that the landlord would suffer greater hardship in case the release application is rejected. The said order is under challenge in the present writ petition.

Sri Vinod Sinha, learned Counsel for the Petitioners submits only following three points in support of the writ petition:

(1) The appellate court has failed to specifically reverse the findings recorded by the prescribed authority on the question of bona fide need and, as such, the appellate order is vitiated and is liable to be set aside.

(2) It is not in dispute that Ravindra Kumar, the elder son of the landlord, whose need was set up in the release application has expired in the year 1996 during the pendency of the writ petition. The need of the landlord, thus, has come to an end. Reliance has been placed on the judgment of the Apex Court in Kedar Nath Agrawal (Dead) and Another Vs. Dhanraji Devi (Dead) by LRs. and Another, and of this Court in Baburam and Anr. v.X Ith Additional District Judge, Meerut and Anr. 2006 (1) ARC 312, wherein it has been held that the events taking place subsequent to filing of release application may be taken into consideration while deciding the release application finally. In the case of Kedar Nath Agrawal (supra), the landlord, for whose need the release was sought for, expired during the pendency of the writ petition in the High Court.

(3) The dimension of the shop in question is 20'' x 30'' and the need of the landlord, if any, can be satisfied by releasing a part of it.

Sri Sinha on behalf of the Petitioners offered at the very outset, at the time of hearing of the writ petition, that he has been instructed by the Petitioners to state before the Court that the Petitioners are prepared to vacate half of the disputed accommodation, if it is acceptable to the landlord/Respondents. The said fact has also been recorded by me in the order-sheet dated 1.5.2007, while reserving the judgment.

Sri M. A. Qadeer, learned Counsel for the landlord, on the other hand, submits that the appellate court, on considering the pleadings of the parties and the evidence on record, has rightly come to the conclusion that the need of the landlord is bona fide and genuine and that he would suffer greater hardship in case the release application is rejected. He submits that the relevant date for deciding the lis between the parties is the date of institution/filing of the release application and the contention of the Petitioners'' counsel that subsequent events can be taken into consideration is legally untenable. Otherwise also, he submits that Ravindra Kumar, the deceased son, has left behind his widow and minor children and in view of the changed circumstances, the need of the landlord has become more acute and pressing as the landlord has to support the family members of Ravindra Kumar (deceased son of Desh Raj Chugg). Apart from the above, the other son, Mohit Kumar (who is co-landlord) has now become major and he is unemployed and unengaged and the disputed shop is needed to establish him. It was pointed out further that the need set up in the release application and as found by the appellate court was the joint need of the landlord, namely, Desh Raj Chugg and his son Ravindra Kumar who has expired. The death of Ravindra Kumar will not in any case cause the disappearance of the need of the landlord.

I have carefully considered the respective submissions of the learned Counsel for the parties.

Taking the first point first, at the outset it may be placed on record that the learned Counsel for the Petitioners without pointing out which finding of the prescribed authority has not been set aside by the appellate court, has argued that the appellate court has committed illegality in reversing the order of the prescribed authority. While preparing the judgment, I have taken into consideration the entire order of the prescribed authority as well as of the appellate court. The prescribed authority proceeded to decide the release application primarily on consideration that Smt. Prakash Kumari wife of the landlord is running a big factory in the name and style of M/s. Steel Era Combined Industry. The order of the prescribed authority, on minute examination, reveals that the prescribed authority has made a general observation that the business of M/s. Steel Era Combined Industry is at a large scale ignoring the plea of the landlord that the said Industry is registered as a Small Scale Industry and the magnitude of the business is not so big. The appellate court, while reversing the findings of the prescribed authority, has taken into consideration that the said Industry is registered as a Small Scale Industry. He has also considered other evidences as well as the Income Tax Assessment to reach to the conclusion that the said Industry is being run by the wife of the landlord and the business is not a big one. No attempt was made by the learned Counsel for the Petitioners to point out any error which might have been committed by the appellate court in reaching to the aforesaid finding. The said finding is basically a finding of fact based upon appreciation of evidence and in the absence of any specific objection by the Petitioners, the said finding is not liable to be disturbed in the present petition. It was not suggested nor argued that the appellate court has taken into consideration irrelevant facts or ignored any material piece of evidence in this regard.

So far as the rental income of the landlord from letting out the property and availability of alternative accommodation is concerned, the appellate court has found that the landlord is receiving only a sum of Rs. 4,500 after adjusting the advance money taken from M/s. Dunlop India. The said rental income is from letting out the godowns and there is no shop. The appellate court has taken into consideration the report of the Commissioner who was appointed at the appellate stage. The Commissioner in his report (76C) has noted that in the said premises, which is situate at Delhi Road, only godowns are available and there is no shop. The said godowns are in possession of M/s. Dunlop India, which was the case of the landlord also. In this view of the matter, the appellate court has rightly reached to the conclusion that the accommodation at Delhi Road is in the nature of godowns and no accommodation is available to the landlord to start a business of General Merchant therein.

It was also alleged by the tenants that the landlord is earning good income from P.C. Os. and Agency business, being Agent of Insurance Company and of Unit Trust of India. The landlord has come forward with a specific case that out of 10 P.C. Os., eight have been closed down being not profitable business and remaining two are on the verge of closure and he intends to close them shortly being not viable. The landlord specifically stated in his affidavit that earlier he was working as an Agent of Insurance Company, but has stopped that business. He has further stated that he never worked as an Agent of U.T.I. These assertions made by the landlord on affidavit have been accepted to be correct by the appellate court. No attempt was made by the learned Counsel for the tenants to point out any error in the said finding recorded by the appellate court or challenge it on any other ground.

The appellate court has also found that Ravindra Kumar was serving in M/s. Steel Era Combined Industry for the time being by way of stop gap arrangement. The appellate court was of the view that Ravindra Kumar could not sit idle in the hope that he will get possession of the disputed accommodation soon and by that time nine years had passed away. I see no fault in the reasonings of the appellate court in negativing the case of the tenants that Ravindra Kumar was gainfully employed in the factory of his mother.

On the question of comparative hardship, the appellate court took into consideration the other alternative offer given by the landlord to the tenants. The landlord offered his residential accommodation to the tenants in exchange of the disputed shop. The said offer was not acceptable to the tenants. At this stage, it may be noted that the case of the landlord throughout has been that, as a matter of fact, the tenants are not doing any business in the disputed shop and their father had sublet it to M/s. Carona Sahu Company Ltd. In the release application it was mentioned that the question of subletting was pending for consideration before the High Court in connected Writ Petition No. 3395 of 1985. The present writ petition was heard alongwith the aforesaid writ petition, as jointly agreed by the learned Counsel for the parties. In the aforesaid connected writ petition, by a separate judgment delivered today, I have found that the father of the tenants had sublet the disputed shop to M/s. Carona Sahu Company Ltd. The said fact is further fortified from the fact that no evidence was produced in the case on hand by the tenants to show that they were actually carrying on the business of M/s. Carona Sahu Company Ltd. being its Agent. Had the tenants been Agent of the said Company, they could have very easily filed relevant copies of the accounts book to buttress their case. An adverse inference, for not filing of the relevant documents can reasonably be drawn against the Petitioners. They have purposely withheld those documents which they could have easily filed, if they were actually carrying on any business of Agency from the disputed shop. In this factual back ground the plea pressed by the tenant Petitioner that the need of landlord is not bona fide needs consideration keeping in mind the purpose and object of enactment of such kind of legislation, i.e., Rent Control Statute. In these circumstances, when the tenant is making illegal profit by subletting the tenanted accommodation, can such a tenant be heard, specially in a writ jurisdiction? The obvious answer is ''No''. Rent Control legislations, like U.P. Act No. 13 of 1972, have been enacted to protect the eviction of such tenant who is bonafidely utilising the tenanted accommodation being a tenant and not otherwise. Plea of such tenant who is none else but a profiteer in opposition of release application of the landlord stands on a very weak footing, deserves no sympathy of the Court.

Besides the above, according to the tenants-Petitioners, now a business in the name and style of Hari Bhoj Restaurant in the disputed shop indisputably opened on 5.9.1989, i.e., subsequent to filing of the release application dated 14.3.1988, is being run. The appellate court has taken into consideration the fact that no documentary evidence was filed to show the income the tenants might be earning from the business of Hari Bhoj Restaurant. The case of the landlord is that the said business of Hari Bhoj Restaurant is not being actually run by the Petitioners-tenants, but it is being run by a third person, namely, Onkar Dutt Sharma which is evident from the invitation card issued on ''opening ceremony''.

The appellate court has taken into consideration the pleadings of the parties, evidence led by them and the respective submissions of the learned Counsel for the parties. No attempt was made by the learned Counsel for the Petitioners before this Court to point out any misreading of evidence or perversity in the findings recorded by the appellate court except making a general submission that it was the duty of the appellate court to specifically reverse the findings recorded by the first Court. Power of appellate court u/s 22 of U.P. Act No. 13 of 1972 is co-extensive with that of the power of the prescribed authority. The appellate court, on appreciation of evidence and taking into consideration the reasonings given by the prescribed authority, may disagree with the order appealed before him.

Questions of bona fide need and comparative hardship are basically questions of fact and they lie in the realm of appreciation of evidence. It has been held by the Apex Court in Ashok Kumar and Others Vs. Sita Ram, that the High Court cannot act as an appellate court and it will have jurisdiction to interfere only when(1) there is manifest error of law or (2) If it would lead to perpetuation of grave injustice, if the order is not set aside.

Taking into consideration the submission of the learned Counsel for the Petitioners in its entirety, in the absence of any specific objection by the Petitioners, I find no error either of law or of fact in the impugned order of the court below. The findings, thus, recorded on the question of bona fide need and comparative hardship do not call for any interference in the writ petition.

The second and third submissions of the learned Counsel for the Petitioners are taken together. It is not in dispute that Ravindra Kumar has expired during the pendency of the present writ petition in the year 1996. On the strength of the judgment of the Apex Court in the case of Kedar Nath Agrawal (supra), the learned Counsel for the Petitioners submits that the writ petition should be allowed on a short point that the need of the landlord has vanished due to death of Ravindra Kumar. He further submits that the tenants are prepared to vacate half of the disputed shop and a part of the accommodation may be released in favour of the landlord.

Before considering the impact of death of Ravindra Kumar on the question of need, it is apt to examine the need which was actually set up by the landlord in his pleadings an evidence. Coming to the release application, therein it has been pleaded that the landlord-Respondent No. 2, Desh Raj Chugg was earlier serving in Tele Communication Department wherefrom he took voluntary retirement and purchased the disputed shop out of the Provident Fund to establish himself and his son Ravindra Kumar who was unemployed at that time, in a business of General Merchant. The averments in this regard have been made in Paras 7 and 7A of the release application. It has been specifically pleaded by him that he alongwith his son Ravindra Kumar will start General Merchant business from the disputed shop. In Para 11 thereof he has given a sort of undertaking that after getting the disputed shop released the applicant (Desh Raj Chugg) and Mohit Kumar son of Desh Raj Chugg will carry on their business. They will not let it out nor they will sell it and, therefore, need is bona fide and genuine vide Para 12. The litigation was fought on the aforesaid premises. It is unfortunate that during the pendency of the writ petition, Ravindra Kumar, the elder son of the landlord has expired. It was not denied that Mohit Kumar, the other son of the landlord has attained the age of majority and is not doing any business nor he is gainfully engaged.

Sri M. A. Qadeer, learned Counsel for the Respondents submits that on account of death of Ravindra Kumar, the need of the landlord has become more acute, as Ravindra Kumar has left behind him, his widow and minor children. It is the liability and responsibility of the landlord to maintain the widow and minor children of Ravindra Kumar ; which no body can possibly deny or dispute.

Taking into consideration the totality of the facts and circumstances of the case and the fact that the release of the shop was sought for the need of the landlord himself alongwith the need of Ravindra Kumar, who is no more, and the fact that his second son has become major coupled with the fact that the landlord has to maintain the family left by his deceased son and also the fact that the landlord has got no other commercial accommodation wherein a shop of General Merchant can be opened, can it be said that the need of the landlord for the disputed shop has dis-appeared altogether. The submission of Sri Qadeer, on the other hand, that the need of the landlord for the disputed shop has increased, cannot be said to be without any substance. The other aspect of the case that the tenants are earning profit by subletting the disputed shop is also germane and cannot be ignored or overlooked lightly, otherwise the very purpose and objects of the Rent Control legislation, as already indicated, would be frustrated. It has been held time and again by the Apex Court that a landlord cannot be denied his property permanently, for all times to come. The following observation is apposite and is extracted from Shakuntala Bai and Ors. v. Narayan Das and Ors. JT 2004 1 SC 538 :

.... There is no warrant for interpreting a Rent Control legislation in such a manner the basic object of which is to save harassment of tenants from unscrupulous landlords. The object is not to deprive the owners of their properties for all times to come.

The argument that the need of the landlord has come to an end on account of death of Ravindra Kumar, during the pendency of the writ petition, is now to be considered in the light of the judgment of the Apex Court in the case of Kedar Nath Agrawal (supra), heavily relied upon by the Petitioner''s counsel.

Before considering the said judgment, it is expedient to notice that there appears to be divergent views on the aforesaid issue as will be clear from the following:

The first case of the Apex Court under the present Statute, namely, U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972 is Kamleshwar Prasad Vs. Pradumanju Agarwal (dead) by LR''s., In this case, the release of the disputed shop was sought by the landlord on the ground that he bona fide requires the accommodation for carrying on his own business and he has no other means of livelihood. During the pendency of the writ petition the landlord expired. In this fact situation, the Apex Court held that crucial date for consideration of the landlord''s need is the date of the application. The tenant incurred the liability of being evicted from the premises on the date of filing of release application and even if the landlord died during the pendency of the writ petition in the High Court, the bona fide need cannot be said to have lapsed as the business in question can be carried on by widow or any elder son. The relevant portion from the judgment is extracted below:

..... That apart the fact that the landlord needed the premises in question for starting a business which fact has been found by the appellate authority, in eye of law, it must be that on the day of application for eviction which is the crucial date, the tenant incurred the liability of being evicted from the premises. Even if the landlord died during the pendency of the writ petition in the High Court the bona fide need cannot be said to have lapsed as the business in question can be carried on by his widow or any elder son......

It may be noted that the Apex Court while making the aforesaid observation, took into consideration the fact that under U.P. Act No. 13 of 1972, "the order of appellate authority is final and the said order is a decree of civil court and decree of a competent court having become final, cannot be interfered with by the High Court in exercise of its power of superintendence under Articles 226 and 227 of the Constitution by taking into account any subsequent event which might have happened.

The aforesaid judgment has been followed in Shakuntala Bai and Ors. (supra). It was a case under Madhya Pradesh Accommodation Control Act. In this case the Apex Court has noticed its earlier judgment in the case of Phul Rani and Others Vs. Sh. Naubat Rai Ahluwalia, In the case of Smt. Phool Rani, the Apex Court has noticed that the well known legal maxim ''actus curiae neminem gravabit'' i.e. ''an act of the Court shall prejudice no man'' shall come into operation. In Para 11 of the report in the case of Shakuntala Bai and Ors. (supra), the Apex Court has noted that the decision rendered in Phool Rani (supra) have been overruled in Shantilal Thakordas and Others Vs. Chimanlal Maganlal Telwala, However, it has observed that the substituted heirs of the deceased-landlord were entitled to maintain the suit for eviction of the tenant and the ratio of the decision in the case of Shantilal Thakordas (supra) by larger Bench does not in any manner affect the view expressed in Phool Rani (supra) that where the death of the landlord occurs after a decree for possession has been passed in his favour, his legal representatives are entitled to defend further proceedings like an appeal and the benefit accrued to them under the decree. In this very case, the Apex Court has considered its several earlier decisions, namely (1) Kamleshwar Prasad Vs. Pradumanju Agarwal (dead) by LR''s., ;(2) Gaya Prasad Vs. Sh. Pradeep Srivastava, (3) G.C. Kapoor Vs. Nand Kumar Bhasin and Others, and(4) P.V. Papanna and others Vs. K. Padmanabhaiah, and held that the observations rendered in Phool Rani (supra) are more in the nature of obiter do not represent the correct legal position. The relevant extract is reproduced below:

... We are, therefore, of the opinion that the observations made in the aforesaid case that "events which take place subsequent to the filing of an eviction petition under any Rent Act can be taken into consideration for the purpose of adjudication until a decree is made by the final Court determining the rights of the parties", which are more in the nature of obiter do not represent the correct legal position.

In Para 15 of the report, the Apex Court in the case of Shakuntala Bai and Ors. (supra) has made the following observations:

.... If the subsequent event like the death of the landlord is to be taken note of at every stage till the decree attains finality, there will be no end to litigation. By the time a second appeal gets decided by the High Court, generally a long period elapses and on such a principle if during this period the landlord who instituted the proceedings dies, the suit will have to be dismissed without going into merits. The same thing may happen in a fresh suit filed by the heirs and it may become an ending process. Taking into consideration the subsequent events may, at times, lead to rendering the whole proceedings taken infructuous and colossal waste of public time..........

Now coming to the case of Kedar Nath Agrawal (supra), it may be noticed that the Apex Court considered the well known case of AIR 1941 5 (Federal Court) and its subsequent decisions including Hasmat Rai and Another Vs. Raghunath Prasad, and Pasupuleti Venkateswarlu Vs. The Motor and General Traders, besides other cases and has held that the High Court was in error in not considering the subsequent event of death of both the applicants. The relevant extract from the judgment is reproduced below:

..... In our view, it was power as well as the duty of the High Court to consider the fact of death of the applicants during the pendency of the writ petition. Since it was the case of the tenant that all the three daughters got married and were staying with their in-laws, obviously, the said fact was relevant and material. The ratio laid down by this Court in Rameshwar, would not apply to the facts of this case as it related to agrarian reforms. Likewise, Gaya Prasad, does not carry the matter further. There during the pendency of proceedings the son for whom requirement was sought had joined Government Service. In the instant case, the requirement was for the applicants, who died during the pendency of writ petition. Gaya Prasad is thus clearly distinguishable.

It appears that the attention of the Hon''ble Court was not brought to its earlier decisions in the case of Kamleshwar Prasad (supra) and Shakuntala Bai (supra). These two decisions were rendered earlier in point of time. The decision given in the case of Shakuntala Bai and Ors. (supra) is dated 5.5.2004 while the decision given in the case of Kedar Nath Agrawal (supra) is dated 13.10.2004. The facts as they stand, it is not necessary to dilate on this point any further. The decision rendered in the case of Kedar Nath Agrawal (supra) is distinguishable. There was none after the death of the landlord whose need, on the facts of the case, could be survived.

However, in the facts of the case on hand, this Court is of the view that the death of Ravindra Kumar does not amount total non-existence of bona fide need of the landlord and the judgment rendered in the case of Kedar Nath Agrawal (supra) is distinguishable on facts also. In the case of Kedar Nath Agrawal (supra), the need set up by the landlord was for himself while in the case on hand, the need set up is of the landlord who is still alive as well as that of Ravindra Kumar (since deceased). It is not in dispute that Ravindra Kumar has left behind him his widow and other family members. Also not disputed that the landlord has got no other commercial accommodation except the disputed one. Need of Ravindra Kumar stands substituted by the need of his widow. Even if, for a moment, need of Ravindra Kumar for the disputed shop is excluded from consideration, the fact remains that the landlord himself, namely, Desh Raj Chugg is unemployed and unengaged. A categorical finding of the appellate court is that the income of the landlord is not sufficient. The other son of the landlord, who is Respondent No. 3 herein, has become major, as submitted by Sri M. A. Qadeer for the landlord, his need for the disputed shop cannot be overlooked and has also to be taken into consideration, besides the fact that the Petitioners-tenants are not actually carrying on any business in the disputed shop and it was sublet by their father and subletting is still continuing by the Petitioners.

There are other relevant considerations which disentitle the Petitioners any discretionary relief to them under Article 226 of the Constitution of India. In support of the plea that the business of Smt. Prakash Kumari in the name and style of M/s. Steel Era Combined Industry, is actually being run by her son Ravindra Kumar, reliance was placed upon a report of Inspector of Weight and Measurement Department who challaned Ravindra Kumar. The appellate court found that the said challan was purposely got done by the Petitioners-tenants as one of the Petitioners Smt. Krishna Sharma herself is working in the Weight and Measurement Department and she got Ravindra Kumar challaned with a view to create an evidence that it is Ravindra Kumar who is actually carrying on the business. This conduct of the tenants also speaks against them.

So far as the question of part release of the disputed shop is concerned, it would be a travesty of justice. The landlord has got no commercial accommodation except the disputed one. The tenants, on the other hand, are profiteering by subletting it and, as such, it does not lie in their mouth to say that the disputed shop be released in part only.

Taking into consideration, the totality of the facts and circumstances of the case, the impugned order cannot be said to be perverse or illegal. The findings of the appellate court on the question of bona fide need and comparative hardship are perfectly justified and need of the landlord still subsists notwithstanding the fact that Ravindra Kumar, the elder son, has expired.

The writ petition is concluded by findings of fact.

In the facts and circumstances of the case, it is desirable to consider the quantum of damages to be paid by the Petitioners-tenants to the landlord-Respondent for the period during which they enjoyed the disputed property on account of the stay order passed by this Court, but remained unsuccessful to maintain the writ petition finally.

39 It is well established that an act of Court shall prejudice no man. The maxim is "actus curiae neminem gravabit". This maxim "is founded upon justice and good sense, and affords a safe and certain guide for administration of law", said Cresswell, J. in Freeman v. Tranah 12 CB 406.

In U.P.S.R.T.C. Vs. Imtiaz Hussain, the Supreme Court has held as follows:

9............. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law, the other maxim is, lex non cogit ad impossibilia-the law does not compel a man to do what he cannot possibly perform. The law itself and its administration is understood to disclaim as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of law must adopt that general exception in the consideration of particular cases. The applicability of the aforesaid maxims has been approved by this Court in Raj Kumar Dey and Others Vs. Tarapada Dey and Others, Gursharan Singh and others etc. Vs. New Delhi Municipal Committee and others, and Mohammad Gazi v. State of M.P. and Ors. JT 2000 (4) SC 55 : 2000 (4) SCC 342;]..........

The Supreme Court has also held that where a stay order was obtained by a party in a proceeding and ultimately the said proceeding is terminated against such person, the person is bound to restitute the benefit and advantages taken by him under the stay order. The unfair advantage taken by a Petitioner due to stay order, advantage is liable to be neutralized. In the present case, the Petitioners have been in occupation of the disputed accommodation on account of stay order passed by this Court on payment of paltry sum as damages which was agreed in the year 1984. Since 1984 the prices of immovable properties have increased manifold, therefore, there is justification for asking the Petitioners to pay something more to adjust equities between the parties.

In this regard, reference can be made to South Eastern Coalfields Ltd. Vs. State of M.P. and Others,

That no one shall suffer by an act of the Court is not a rule confined to an erroneous act of the Court ; the ''act of the Court'' embraces within its sweep all such acts as to which the court may form an opinion in any legal proceedings that the Court would not have so acted had it been correctly apprised of the facts and the law. The factor attracting applicability of restitution is not the act of the Court being wrongful or a mistake or error committed by the Court ; the test is whether on account of an act of the party persuading the Court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the Court and the act of such party. The quantum of restitution, depending on the facts and circumstances of a given case, may take into consideration not only what the party excluded would have made but also what the party under obligation has or might reasonably have made. There is nothing wrong in the parties demanding being placed in the same position in which they would have been had the Court not intervened by its interim order when at the end of the proceedings the Court pronounces its judicial verdict which does not match with and countenance its own interim verdict. Whenever called upon to adjudicate, the Court would act in conjunction with what is the real and substantial justice. The injury, if any, caused by the act of the Court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the Court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences. Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the Courts, persuading the Court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigants would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the Court withholding the release of money had remained in operation.

Also taking into consideration the law laid down by the Apex Court in the case of Atma Ram Properties (P) Ltd. Vs. Federal Motors Pvt. Ltd., damages is payable for the period during which stay order remained in operation.

The shop in question was sublet under agreement dated 6.9.1973 by the father of the Petitioners at the rent of Rs. 750 per month to M/s. Carona Sahu Company Ltd. Taking into consideration the fact that the prices of immovable property have sky rocketed, it is desirable that a nominal damages to the tune of Rs. 2,000 per month be levied on the Petitioners for the period during which they enjoyed the unconditional stay order staying their dispossession from the disputed accommodation. The unconditional stay order was passed by this Court on 21.7.1993. The Petitioners are, therefore, directed to pay the damages at the rate of Rs. 2,000 per month in addition to the agreed rent for the period commencing August 1993 upto 31st August 2007. The aforesaid damages has been fixed keeping in view the fact that the present rental value of such property would be not less than its five times. The shop in question is situate in the heart of the City at Begum Bridge, Meerut and its dimension is 20'' x 30''.

Time to vacate the disputed premises is granted upto 31.8.2007, provided the tenants-Petitioners file an undertaking on affidavit before the prescribed authority on or before 16.7.2007 to the effect that they will vacate the disputed shop and will hand over its vacant peaceful possession to the Respondent-landlord without creating any third party interest on or before 31.8.2007 alongwith the damages as awarded above. If the Petitioners fail to file the undertaking , as indicated above, it shall be open to the landlord to get the release order executed. Then the Petitioners-tenants shall be liable to pay the damages for use and occupation of the disputed shop at the rate of Rs. 20,000 (Rs. Twenty thousand only) per month till the date of actual delivery of possession from the period commencing September 2007. The said damages have been fixed taking into consideration the fact that the shop in question is situate in the heart of the city of Meerut which is the main businesses centre.

If the Petitioners fail to pay/deposit the damages, as directed above, on or before 31.8.2007, the Respondent landlord will be entitled to file appropriate application for recovery of damages before the District Magistrate, Meerut. The District Magistrate, Meerut on filing of such application shall recover the damages, as awarded above, from the Petitioners as arrears of land revenue and shall pay the same to the Respondent landlord after realising it from the Petitioners.

The writ petition is dismissed with costs of Rs. 5,000 (Rs. Five thousand only).