- (1.) HEARD Sri Pankaj Mithal, learned counsel appearing on behalf of the petitioner and Sri M. K. Nigam, learned counsel for the respondent.
(2.) THE controversy has already been settled by this Court when Civil Misc. Writ Petition No. 50147 of 2003, Iqbal v. Akhtar, has been decided by this Court vide its judgment and order dated 16th December, 2003. This Court directed the matter to be decided in view of the statement made in paras 3 and 4 of the judgment itself, which are quoted below: " (3) That in para 26 of the writ petition the petitioner has challenged the judgment and order dated 29- 10- 2003 on the ground that appellate Court has not recorded any finding that the shop situated on the first floor of the shop situate at Lala Ganj Opposite Ghass Ki Mandi, Bharatpur Gate, Mathura is not vacant or is not available to the respondent for setting his son, or that is not suitable for the purposes of doing Sajawat Business by the son of the respondent. (4) That in view of challenge made in the writ petition and findings recorded by the appellate Court, it is expedient in the interest of justice that the above mentioned writ petition may be allowed for the purpose of this fact only and appeal may be remanded to appellate Court for the same purpose only with the direction to give a categorical finding as to availability of the shop alleged to be on the first floor of the shop situate at Lala Ganj, Opposite to Ghass Ki Mandi, Bharatpur Gate, Mathura, after taking evidence from either party if any within a time specified by this Hon'ble Court. " This Court in view of above, directed as above: "whether first floor shop situate at Lalaganj, Opp. Ghas Ki Mandi, Bharatpur Gate, Mathura is vacant and available to the landlord for setting his son in decoration/sajawat business and if vacant and available is suitable for said business or not. " Sri Mithal, learned counsel appearing on behalf of the petitioner argued that pursuant to the direction issued by this Court, as quoted in paragraphs 3 and 4 of the judgment the relevant portion whereof is "availability of the shop alleged to be on the first floor of the shop situate at Lala Ganj, Opposite to Ghass Ki Mandi, Bharatpur Gate, Mathura, after taking evidence from either party if any, within a time specified by this Hon'ble Court" the appellate Court has committed again an error in not considering the evidence already on record. On the other hand, Sri Nigam, learned counsel appearing on behalf of the respondent contended that there is no such direction, the direction issued by this Court is already quoted above. To me it appears that the aforesaid direction contains that the parties should be allowed to adduce such evidence as they would like to adduce within a time frame and the appellate authority was directed to decide the vacancy, availability and thereafter suitability of the shop on the first floor as suggested, of the property i. e. Lala Ganj, Opposite to Ghass Ki Mandi, Bharatpur Gate, Mathura. So far as the material, which has been placed before the appellate Court after remand after material has been considered and it cannot be complained that any material has not been considered. The commissioner's report clearly demonstrates that there is only one shop. Of course, as pointed out by learned counsel for the petitioner that there was sign of partition wall, which, according to the petitioner, has recently been removed but no finding has been recorded, nor any evidence has been produced in this regard, particularly when nothing in this regard is pleaded. To me it appears that the order passed by the appellate Court does not suffer from error so as to warrant any interference in exercise of power under Article 226 of the Constitution of India. Lastly, it is contended by Sri Mithal that since the petitioner-tenant is carrying on business in the disputed property he may be allowed some reasonable time to vacate the shop. Considering the facts and circumstances of the case, I come to the conclusion that it is expedient in the interest of justice that in case the petitioner furnishes an undertaking before the prescribed authority within fifteen days from today, the petitioner is allowed time till 31st December, 2005 by which date the petitioner shall handover the peaceful vacant possession of the shop in question, subject to the condition that the petitioner will pay the entire arrears of rent/damages till date if not already paid and continue to pay the same at the rate of rent payable by him till he remains in occupation, or till 31st December, 2005, whichever is earlier. In the event of default of the aforesaid condition, it will be open to the respondent- landlord to get the order of release executed. With the aforesaid direction, this writ petition is dismissed. However the parties shall bear their own costs. Writ petition dismissed. .;