GULSHERA KHANAMversusAFTAB AHMAD

                         [2016] 5 S.C.R. 393



                      GULSHERA KHANAM                                     A
                                  v.
                          AFTAB AHMAD
                   (Civil Appeal No.9727of2016)
                       SEPTEMBER 27, 2016                                 B

[J. CHELAMESWAR AND ABHAY MANOHAR SAPRE, JJ.)
        U.P. Urban Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972 - s.3(g) - Definition of word 'fa111ily"- Married
daughter - Eviction for the bona fide need of 111arried daughter -
Entitle111ent for - Held: Any fe111ale having legal right of residence
                                                                          c
in the building is included in the definition of 'fa111ily" regardless
of the fact whether she is married or not - Appellants husband
died intestate, therefore, on his death his entire estate including the
building in question devolved on the appellant (wife), his two sons
and four daughters as per shares defined in Hanafi Law of                 D
Inheritance - Appellants married daughter received a share and
became co-owner having a legal right of residence in the building -
Hence, appeIIant entitled to claim respondents eviction for the need
of her 111arried daughter falling under the definition of 'family" -
High Courts finding that married daughter does not fall within the
                                                                          E
meaning of word "family" defined in s. 3(g) erroneous - Rent
Control and Eviction - Bonafide need.
       U.P. Urban Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972 - s.2/(l)(a) - Eviction - Bonafide need of
landlord - Appellants need for additional space for expansion of
clinic activities for her daughter in respect of the shop adjacent to
                                                                          F
her clinic - field: Expansion of appellants daughters clinic would
be effective only with the use of two shops which are adjacent to
each other - Landlord is the sole judge to decide as to how much
space is needed to start/expand any activity - High Court not
iustified in reversing the concurrent findings of the two courts below    G
on appellants bonafide need.
      Constitution of India: Art.227 - Concurrent findings of courts
below - High Courts power u/Art.227 in rent matters - Held: High
Court could not have upset the concurrent findings in its writ
;urisdiction which is more or less akin to revisional jurisdiction -      H
                                 393
394            SUPREME COURT REPORTS                        [2016) 5 S.C.R.


A     Jurisdictional error committed by High Court by probing into factual
      issues and re-appreciating evidence like a first appellate court.
            Allowing the appeal, the Court
            HELD: 1.1 The definition of the word "family" as defined
      in Section 3(g) of the Act shows that it includes in relation to
B     landlord, any female having a legal right of residence in that
      building. (Paras 24, 25) (399-H; 400-D)
              1.2 The inclusive part of the definition enacted only for the
      benefit of "female" in relation to the landlord, adds one more
      category of person in addition to those specified in clauses (i) to
c     (iii), namely, "any female having a legal right of residence in that
      building". (Para 26] (400-E)
            1.3 A fortiori, any female having a legal right of residence in
      the building, is also included in the definition of"family" in relation
      to landlord regardless of the fact whether she is married or not.
D     The original owner died intestate and on his death his entire estate
      including the building in question devolved on the appellant (wife),
      his two sons and four daughters as per shares defined in Hanafi
      Law of Inheritance. Appellant's daughter received her share and
      became co-owner having a legal right of residence in the building.
 E    Being a co-owner, she got a legal right of residence in the building
      as provided under Section3(g) of the Act. In this way, she fulfilled
      the definition of "family" under Section 3(g) of the Act. (Paras
      27, 28, 29 and 30) (400-E-F; 401-A, F)
            Mulla- Principles of Mahomedan Law- 20th Edition,
 F
            (Chapter VII) page 66-A- "Hanafi Lmv ofln/1eritance"
            - referred to.
            2 Appellant was thus entitled to claim eviction of the
      respondent for the need of her daughter for running her clinic as
      the daughter was having a legal right of residence in the building
      in question. (Para 31) [401-G)
G
            3.1 The question in relation to the bona fide need of the
      appellant's daughter to expand the activities of running the clinic
      was rightly held by the Prescribed Authority and the first appellate
      Court in appellant's favour by holding the appellant's need to be
      bona fide and genuine. There was no ground on which the High
H
           GULSHERA KHANAM v. AFTAB AHMAD                                  395


Court could have upset the concurrent finding on this question             A
in its writ jurisdiction under Article 227 which is more or less
akin to revisional jurisdiction of the High Court. [Para 36) (403-
G)
      3.2 Appellant's daughter's need for expansion of clinic
could be accomplished effectively only with the use of two shops,          B
which are adjacent to each other. It is a well settled principle laid
down by this Court in rent matters that the landlord is the sole
judge to decide as to how much space is needed for him/her to
start or expand any of his/her activity. This principle was
overlooked by the High Court while deciding the issue of need.
[Para 38) [404-C-D]                                                         c
      Hindustan Petroleum Corpn. Ltd. vs. Dilbahar Singh
      (2014) 9 sec 78 - followed.
      Surya Dev Rai vs. Ram Chander Rai & Ors. 2003 (2)
      Suppl. SCR 290 : (2003) 6 SCC 675 - referred to.                      D
                       Case Law Reference
(2014) 9 SCC 78                 followed                . Para 33
2003 (2 ) Suppl. SCR 290        referred to               Para 35
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9727
                                                                            E
of2016.
      From the Judgment and Order dated 17.01.2012 of the High Court
of Judicature at Allahabad, in Civil Misc. Writ Petition No. 65612 of
2011.
     Salman Khurshid, Sr. Adv., lmtiazAhmed, Ms. Naghma Imtiaz,
Ahmed Zargham, Meraj A. Khan, Ms. ShabeenaAnjum (For Mis. Equity            F
Lex Associates), Advs. for the Appellant.
     V. K. Garg, Sr. Adv., Neeraj Kr. Sharma, Ms. Priyanka Dixit,
Ajay Kumar Singh, Advs. for the Respondent.
      The Judgment of the Court was delivered by
                                                                            G
      ABHAY MANOHAR SAPRE, J. I .Leave granted.
      2.This appeal is filed against the final judgment and order dated
17.01.2012 passed by the High Court of Judicature at Allahabad in Civil
Misc. Writ Petition No. 65612 of20 I I whereby the High Court allowed
the writ petition filed by the respondent-tenant and set aside the order
                                                                            H
396            SUPREME COURT REPORTS                           [2016] 5 S.C.R.


A      dated 04.03.1999 of the Prescribed Authority in U.P.U.B. Case No. 13
      ·of 1994 and order dated 24.08.2011 of the Additional District Judge,
       Aligarh in U.P.U.B. Appeal No. 07of1999.
            3. Facts of the case need mention, in brief, infra to appreciate the
      controversy involved in the appeal.
B            4. The appellant is the landlady of the shop being Shop No. 6
      situated on the Dodhpur Road, Aligarh, Building No. 4/5698. The
      respondent is the tenant in Shop No. 6 and doing business of selling
      Footwear (shoes and sandals) in the name of Khan Brothers on a monthly
      rent of Rs. I 00/-.
c            5. There are in all 7 shops in the building in which suit shop in
      situated. Except Shop No.7, all are occupied by different tenants. Shop
      No. 7 is in occupation of the appellant wherein her daughter Dr. Naheed
      Parveen is doing medical practice. Initially, Shop No. 7 was occupied by
      the husband of the appellant, Dr. Ahsan Ahmed, who was practicing
D     medicines in the said shop and after his death, the said shop remained
      closed for about two-three years and after that her daughter started
      practicing medicines there.
             6. According to the appellant, Shop No. 7 is about 16.9 ft. x!O ft.
      in area and is inadequate for running clinic.
 E            7. On 11.02.1994, the appellant personally requested the
      respondent to vacate Shop No. 6 but he did not vacate. Therefore, the
      appellant filed an application under Section 21 (I )(a) of Uttar Pradesh
      Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972
      (hereinafter referred to as "the Act") in the Court of the Prescribed
      Authority/Civil Judge, Senior Division,Aligarh being U.P.U.B. Case No.
 F
      13 of 1994 seeking release of Shop No. 6 in her favour for her bona
      fide requirement and genuine need in comparison to the need of the
      respondent. It was alleged that the appellant's daughter, who is a doctor
      and running her private clinic in Shop No. 7 is finding it difficult and
      inconvenient to run the clinic due to space constraint in Shop No. 7 and
 G    it is for this reason she requires adjacent Shop No. 6 so that both Shops,
      i.e., 6 and 7 could be used for running the clinic in a comfortable manner.
      It was also alleged that the appellant's one son has done his MBBS and
      is doing M.D. He too would do his practice in the shop in question. It
      was alleged that there would be no space constraint once both the Shops
      (6&7) are clubbed together. It was further alleged that the appellant has
 H
            GULSHERA KHANAM v. AFTAB AHMAD                                       397
                [ABHAY MANOHAR SAPRE, J.]

no other shop available except Shop No. 6 which is most suitable for             A
expansion of clinic being next to Shop No. 7. It was also alleged that the
respondent is having his own shops in the same area and hence even if
he vacates the shop in question, there will be no hardship to him.
       8. The respondent filed his written statement to the application
denying the need of the appellant-landlady as bona fide or genuine.              B
Parties adduced evidence.
       9. By order dated 04.03.1999, the Prescribed Authority allowed
the application and directed the respondent-tenant to vacate the shop in
question within 3 months of the date of the order and to give the vacant
posst;ssion to the appellant-landlady and also pay by way of damages              c
two years' rent amount within 30 days from the date of the order. It was
held that the appellant's need for using Shop No. 6 is bona fide and
genuine and that it is required for expansion of clinic run by the appellant's
daughter in Shop No. 7 and her son. It was held that the appellant has no
other suitable shop in city where her daughter/son can run their clinic. It
was ~!so held that the respondent has other shops for running his business
                                                                                  D    0




in the same locality and, therefore, there would be no hardship caused to
the respondent.
       I 0. Felt aggrieved by the said order, the respondent-tenant filed
an appeal being U.P.U.B. Appeal No. 7of1999 under Section 22 of the
Act before the Additional District Judge, Aligarh. By order dated                 E
02.02.2000, the appellate court allowed the appeal and set aside the
order dated 04.03 .1999 on the ground that the Presiding Officer has no
jurisdiction to pass the order.
      11. Against the said judgment/order dated 02.02.2000, the appellant-
landlady filed C.M.W.P. No. 10669 of2000 before the High Court. The               F
High Court by order dated 18.02.2011 allowed the petition and set aside
the order dated 02.02.2000 and remanded the matter to the appellate
Court for deciding the same on merits in accordance with law.
      12: Thereafter by order dated 24.08.2011, the appellate court
dismissed the appeal (U.P.U .B. Appeal No. 7of1999) of the respondent-            G
tenant and confirmed the order dated 04.03 .1999 passed by the
Prescribed Authority.
       13. Feeling aggrieved by the said order, the respondent-tenant
filed C.M.W.P. No. 65612 of201 l before the High Court.
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398             SUPREME COURT REPORTS                            [2016) 5 S.C.R.


A             14. By impugned judgment dated 17.01.2012, the High Court
      allowed the writ petition and set aside the order dated 04.03.1999 of the
      Prescribed Authority and order dated 24.08.2011 dismissing the appeal
      of the respondent-tenant. The High Court held that firstly, the appellant's
      daughter- Dr. Naheed Parveen is not a member of family as defined
      under Section 3(g) of the Act because she is a married daughter whereas
B
      Section 3(g)(iii) include only an "unmarried daughter". Secondly, it was
      held that for this reason, the appellant could not seek eviction for the
      need of her married daughter; and lastly, it was held that the appellant's
      need is not bona fide.
            15. Against the said judgment, the appellant-landlady has filed this
c     appeal by way of special leave before this Court.
            16. Heard Mr. Salman Khurshid, learned Senior Counsel, for the
      appellant and Mr. V.K. Garg, learned senior counsel, for the respondent.
             17. Mr. Salman Khurshid, learned counsel for the appellant
D     (landlady) while assailing the legality_ and correctness of the impugned
      judgment of the High Court urged three submissions.
             18. His first submission was that the High Court erred in allowing
      respondent's writ petition by setting aside the order of the appellate court
      and the Prescribed Authority and thereby erred in dismissing the
E     appellant's eviction petition filed under Section 21 of the Act.
             19. His second submission was that the High Court erred in holding
      that the married daughter of landlady does not fall within the definition
      ofan expression "Family" as defined in Section 3 (g) of the Act. Learned
      counsel urged that the High Court failed to notice that the definition of
      "family" is an inclusive definition and includes therein "any female having
 F
      a legal right of residence in the building (tenanted accommodation)".
      Learned counsel pointed out that since it was an admitted fact that the
      appellant's husband (Muslim by religion) died intestate leaving behind
      daughter-Dr. Naheed Parveen as one of his heirs, she inherited an
      undivided but specific ownership right and interest in the suit building as
G     provided in Mahomedan Law ofinheritance. Learned counsel contended
      that the word "female" used in the definition of family would, therefore,
      include "daughter" regardless of the fact as to whether she is married
      or not provided she is able to show that she has an interest in the suit
      building which, in tum, entitles her to claim a right of residence in such
      building. It was urged that the daughter of the appellant did inherit interest
H
            GULSHERA KHANAM v. AFTAB AHMAD                                     399
               [ABHAY MANOHAR SAPRE, J.]

in the suit building as one of the co-owners which, in turn, entitles her to   A
claim a right of residence in the suit building by virtue of she being a
female.
       20. His third submission was that when two courts below, i.e.,
Prescribed Authority and the first appellate court after appreciating oral
and documentary evidence, held that the appellant's need was genuine           B
and bona fide and that she has no other suitable shop of her own in the
city •vhere her daughter could shift her clinic and lastly, since the
respondent (tenant) is having his more than one alternative suitable shop
near to the suit shop, the appellant is entitled to claim the respondent's
eviction from the suit shop, the High Court while hearing writ petition
under Article 227 of the Constitution of India had no jurisdiction to upset
                                                                                c
the concurrent findings of fact. It was urged thatthese concurrent findings
were binding on the High Court. Learned counsel further urged that it
was more so because the findings were nei'ther perverse to the extent
that no average judicial person could ever reach to such conclusion nor
these findings were against any provisions of law and not against               D
pleadings or evidence.
       21. In reply, learned counsel forthe respondent (tenant) supported
the reasoning and the conclusion arrived at by the High Court and urged
that the impugned judgment does not suffer from any error.
      22. Having heard the learned counsel for the parties and on perusal       E
of the record of the case, we, find force in the submissions urged by
learned counsel for the appellant.
       23. Two questions arises for consideration in this appeal, first,
whether the High Court was justified in reversing the concurrent findings
of the two courts below and thereby was justified in dismissing the             F
appellant's eviction petition filed against the respondent under Section
21 of the Act by holding that the appellant's need set up in the petition
for her daughter was not bona fide; and second, whether the finding
that the appellant's married daughter does not fall within the meaning of
the word "family" as defined under Section J(g) of the Act and, therefore,      G
her need cannot be considered under Section 21 of the Act for granting
eviction of the tenant is proper or not?
      24. Coming to the second question first, in our opinion, its answer
depends upon the proper interpretation of the definition of the word
"family" as defined in Section J(g) of the Act. It reads as under:
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400             SUPREME COURT REPORTS                            [2016] 5 S.C.R.


A            "3(g) "Family", in relation to a landlord or tenant of a
             building, means, his or her-
               ")
             ( 1, spouse;
             (ii) male lineal descendants;

B            (iii) such parents, grandparents and any unmarried or
                 widowed or divorced or judicially separated daughter
                 or daughter of a male lineal descendant, as may have
                 been normally residing with him or her,
             and includes, in relation to a landlord, any female having a
c            legal right of residence in that building;"
            25. Perusal of the afore-quoted definition would go to show that
      family in relation to landlord or tenant of a building would include (I)
      spouse (2) male lineal descendants (3) such parents, grandparents,
      unmarried or widowed or divorced or judicially separated daughter or
D     daughter of a male lineal descendant as may have been residing with the
      landlord. The definition further says, "Family" includes in relation to
      landlord, any female having a legal right of residence in that building.
             26. The inclusive part of the definition, which is enacted only for
      the benefit of"female" in relation to the landlord, adds one more category
      of person in addition to those specified in clauses (i) to (iii), namely, "any
E
      female having a legal right of residence in that building".
             27. A fortiori, any female, if she is having a legal right ofresidence
      in the building, is also included in the definition of"family" in relation to
      landlord regardless of the fact whether she is married or not. In other
      words, in order to claim the benefit of expression "family'', a female
F
      must have a "legal right of residence" in the building. Such female would
      then be entitled to seek eviction of the tenant from such building for her
      need.
            28. Coming to the facts of this case, it is not in dispute that Dr.
      Ahsan Ahmad was the original owner of the building in question. He
G     died intestate and, therefore, on his death, the appellant, two sons and
      four daughters inherited the estate left by Dr. Ahsan Ahmad, which
      included the building, in question.
            29. Since Dr. Ahsan Ahmad was Mahomedan, his entire estate
      including the building in question, devolved on the appellant (wife), his
H
            GULSHERA KHANAM v. AFTAB AHMAD                                          401
                [ABHAY MANOHAR SAPRE, J.]

two sons and four daughters as per the shares defined in Hanafi Law of              A
Inheritance. The shares of the heirs which are defined in the Table in
Chapter VII titled "Hanafi Law oflnheritance" (at page 66-A ofMulla-
Principles ofMahomedan Law-20th Edition) would show that daughter
is also entitled to claim her specific share in her father's estate. The
daughter's share is defined in column Nos. 2, 3 and 4 at serial number 7,
                                                                                     B
in the table. It reads as under:
   (I)                    (2)                   (3)               (4)
 Sharers               Nonna) Share        Conditions        This column sets
                                           under which       out-
                                           the      nonnal   (A) Shares of
                                           share        is   Sharers       Nos.      c
                                           inherited         3,4,5,8 and 12 as
                Of          Of two or                        varied by special
                on.:        more                             circumstances;
                            collectively                     (B)     conditions
                            (b)                              under        which
                                                             sharers       Nos.
                                                             1,3,7,8,11and12         D
                                                             succeed         as
                                                                                .
                                                             Residuaries
 7. Daughter    1/2          213           When no son       [With the son
                                                             she becomes a
                                                             residuary:     see
                                                             Tab.            Of      E
                                                              Res.,No.l l
       30.Dr. Naheed Parveen being the daughter, accordingly, received
her share and became co-owner of the building along with other co-
sharers. Being a co-owner, she got a legal right of residence in the building
as provided under Section 3(g) of the Act. In this way, she fulfilled the            F
definition of"family" under Section 3 (g) of the Act.
       31.In the light of foregoing discussion, we are unable to agree
with the reasoning of the High Court and while reversing the finding
answer the second question in appellant's favour and accordingly hold
that the appellant was entitled to claim eviction of the respondent from             G
the building in question for the need of her daughter Dr. Naheed Parveen
for running her clinic as the daughter was having a legal right ofresidence
in the building in question.
      32.This takes us to examine the first question as to whether the
High Court was justified in its writ jurisdiction to reverse the concurrent          H
402            SUPREME COURT REPORTS                          [2016] 5 S.C.R.


A     findings of the two courts below and was, therefo,re,justified in holding
      that the appellant's (landlady) need for expansion of clinic run by her
      daughter was not bona fide.
            33.The Constitution Bench of this Court settled the law relating to
      exercise ofjurisdiction by the High Court while deciding revision in rent
B     matters under the Rent Control Act in Hindustan Petroleum Corpn.
      Ltd. vs. Dilbahar Singh, (2014) 9 SCC 78, Justice R.M. Lodha, the
      learned Chief Justice speaking for the Bench held in para 43 thus: (SCC
      pp.101-102)
            "43. We hold, as we must, that none of the above Rent
c           Control Acts entitles the High Court to interfere with the
            findings of fact recorded by the first appellate court/first
            appellate authority because on reappreciation of the
            evidence, its view is different from the court/authority below.
            The consideration or examination of the evidence by the
            High Court in revisional jurisdiction under these Acts is
D.          confined to find out that finding' of facts recorded by the
            court/authority below is according to law and does not suffer
            from any error of law. A finding of fact recorded by court/
            authority below, if perverse or has been arrived at without
            consideration of the material evidence or such finding is
E           based on no evidence or misreading of the evidence or is
            grossly erroneous that, if allowed t~ stand, it would result
            in gross miscarriage of justice, is open to correction because
            it is not treated as a finding according to law. In that event,
            the High Court in exercise of its revisional jurisdiction
            under the above Rent Control Acts shall be entitled to set
F           aside the impugned order as being not legal or proper. The
            High Court is entitled to satisfy itself as to the correctness
            or legality or propriety of any decision or order impugned
            before it as indicated above. However, to satisfy itself to
            the regularity, correctness, legality or propriety of the
G           impugned decision or the order, the High Court shall not
            exercise its power as an appellate power to reappreciate
            or reassess the evidence for coming to a different finding
            on facts. Revisional power is not and cannot be equated
            with the power of reconsideration of all questions of fact as
            a court of first appeal. Where the High Court is required to
H
            GULSHERA KHANAM v. AFTAB AHMAD                                       403
               [ABHAY MANOHAR SAPRE, J.]

       be satisfied that the decision is according to law, it may                 A
       examine whether the order impugned before it suffers from
       procedural illegality or irregularity."
       34. Coming now to the facts of this case, keeping in view .the
principle of law laid down in the aforementioned case and on perusal of
the order of the Prescribed Authority/Civil Judge and the first appellate        B
court, we find that both the courts properly appreciated the facts and
evidence adduced by the parties and on that basis recorded all necessary
findings (detailed above) in favour of the appellant and granted decree
of eviction against the respondent. This the Prescribed Authority/Civil
Judge and the first appellate court could do in their respective jurisdiction
and, in our opinion, both the courts rightly did it in the facts of this case.    c
       35. Likewise, when we peruse the impugned judgment, we find,
as rightly urged by the learned counsel for the appellant, the High Court
did not keep in mind the aforesaid principle of law laid down by the
Constitution Bench in Hindustan Petroleum Corpn. Ltd. (supra) so
also the principle laid down by this Court in relation to exercise of             D
jurisdiction under Article 227 of Constitution oflndia in the case of Surya
Dev Rai vs. Ram Chander Rai & Ors., (2003) 6 SCC 675 while
deciding the writ petition and proceeded to decide like the first appellate
court. The High Court as is clear from the judgment probed all factual
aspects of the case, appreciated evidence and then reversed the factual           E
findings of the appellate court and the Prescribed Authority. This, in our
view, was a jurisdictional error, which the High Court committed while
deciding the writ petition. In other words, the High Court, in our view,
should have confined its inquiry to examine as to whether any jurisdictional
error was committed by the first appellate court while deciding the first
appeal. It was, however, not done.                                                F

       36. In our considered opinion, the question in relation to the bona
fide need of the appellant's daughter to expand the activities of running
the clinic was rightly held by the Prescribed Authority and the first
appellate Court in appellant's favour by holding the appellant's need to
be bona fide and genuine. We find no ground on which the High Court               G
could have upset the concurrent finding on this question in its writ
jurisdiction under Article 227, which is more or less akin to revisional
jurisdiction of the High Court. The High Court also failed to hold that
finding of the two courts were so perverse to the extent that any judicial
person could ever reach to such conclusion or that the findings were              H
404             SUPREME COURT REPORTS                            [2016] 5 S.C.R.



A     against any provision of law or were contrary to evidence adduced etc.
               37. The High Court, in our view, should have seen, as was rightly
      held by the two courts below, that the appellant's daughter had been
      running her medical clinic in shop No. 7 for quite some time. This fact
      was not in dispute. Though a feeble attempt was made by the respondent
B     cc.. ,tending that after appellant's daughter's marriage, she has started
      living in Moradabad and, therefore, her need to run the clinic and expand
      its activity is not bonafide but this plea did not find favour with Prescribed
      Authority and the first appellate Court and, in our view, this being a pure
      finding of fact, was binding on the High Court in its writ jurisdiction.

c             38. In our considered opinion, the appellant's need for additional
      space for the expansion of clinic activities for her daughter cannot be
      said to be unjust or unreasonable in any manner. It is for the reasons
      that, firstly, the suit shop No.6 is adjacent to Shop No. 7 and secondly,
      the need for expansion of clinic could be accomplished effectively only
      with the use of two shops, which are adjacent to each other. It is a well
D     settled principle laid down by this Court in rent matters that the landlord
      is the sole judge to dfcide as to how much space is needed for him/her
      to start or expand any of his/her activity. This principle was overlooked
      by the High Court while deciding the issue of need. That apart, the High
      Court should have also seen that the two courts below have recorded a
E     finding that the respondent was having his own shops in the same area
      where he could shift his existing business activity without suffering any
      comparative hardship.
             39. In the light of aforementioned factual findings of the courts
      below, in our view, there was no justification on the part of the High
 F    Court to have probed into any factual issues again in depth by undertaking
      appreciation of evidence like a first appellate court and reversed the
      findings.
             40. In view of foregoing discussion, we are unable to agree with
      the reasoning and the conclusion arrived at by the High Court. The
G     impugned judgment is, therefore, not legally sustainable and is accordingly
      set aside. As a result, the order dated 04.03 .1999 of Prescribed Authority
      in U.P.U.B. No. 13/1994 and order dated 24.08.2011 of the Additional
      District Judge, Aligarh in U.P.U.B. Appeal No. 7199 are restored. The
      respondent is, however, granted three months' time to vacate the suit
      shop from the date of this order subject to furnishing of the usual
H     undertaking in this Court to vacate the suit premises within 3 months and
            GULSHERA KHANAM v. AFTAB AHMAD                                        405
               [ABHAY MANOHAR SAPRE, J.)

further, the respondent would in addition to the directions given by the           A
Prescribed Authority also deposit all arrears ofrenttill date at the same
rate at which he had been paying monthly rent to the appellant (if there
are arrears) and would also deposit three months' rent in advance by
way of damages for use and occupation as permitted by this Court. Let
the undertaking, arrears ofrent, damages for three months and compliance
                                                                                   8
of direction to deposit damages by Prescribed Authority and the cost
awarded by this Court be deposited within one month from the date of
this order.
        41. Tt-.<: appeal is accordingly allowed with cost, which is quantified
at Rs. l 0000/-, to be paid by the respondent to the appellant.
                                                                                   c
Divya Pandey                                                   Appeal allowed.