Judgment R.H. Zaidi, J. (1) By means of this petition filed under Article 226 of the Constitution of India, petitioner prays for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 22.3.2000 passed by the Rent Control and Eviction Officer, Dehradun declaring the building No, A-6, Madhp Ram Flats, for short building in dispute, as vacant in exercise of powers under Section 16 read with Section 12 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. XIII of 1972, for short, the Act). (2) The facts of the case giving rise to the present petition, in brief, are that the respondent No. 2, Smt. Madhu Kukshal who happens to be daughter-in-law of the petitioner, filed an application for allotment of the house in dispute before the respondent No. 1, on the basis of which the said respondent directed the Rent Control Inspector to make local inspection and submit the-report. In compliance of the order passed by the Rent Control and Eviction Officer, the Rent Control Inspector is alleged to have inspected the building in question on 7.1.2000, and thereafter submitted his report on 19.1.2000, sup porting the version of respondent No. 2, copy of which is contained as Annexure-2 to the writ petition. On the basis of the said report the Rent Control and Eviction Officer issued notices to the parties concerned. The petitioner filed an objection against the report of the Rent Control Inspector on 15.3.2000. The case was thereafter fixed for 22.3.2000. It has been stated that on 22.3.2000 all Courts including the respondent No. 1 were closed on account of strike by lawyers. On the said date the petitioner reached the office of respondent No. 1 but Peshkar of respondent No. 1 informed the petitioner that the record of the case shall be sent to the said respondent for fixing a day and she could enquire after lunch. Petitioner thereafter reached the office at 3.30 p.m. where neither the Peshkar nor the respondent No. 1 was present. After waiting for some time she had to come back to her home. Till 23.2.2000 the office remained closed. It was only on 27.3.2000 when she reached the office of Respondent No. 1, she came to know that on 23.2.2000 the case was heard ex-parte and the house in dispute was declared vacant. After waiting for some time she had to come back to her home. Till 23.2.2000 the office remained closed. It was only on 27.3.2000 when she reached the office of Respondent No. 1, she came to know that on 23.2.2000 the case was heard ex-parte and the house in dispute was declared vacant. She, therefore, had no option but to make an application to recall the said order, copy of the application to recall of the order dated 23.2.2000 has been filed as Annexure-6 to the writ petition. Since no orders were passed on the application filed by the petitioner to recall the order dated 23.2.2000, she had no option but to approach this Court and file the present petition. Learned Counsel for the petitioner vehemently urged that the order dated 23.2.2000 was passed ex-parte behind the back of the petitioner. The said order was, therefore, liable to be recalled. It was also urged that, under the facts and circumstances of the present case, the house in dispute cannot be declared vacant as there was no vacancy either factually or legally. It was also submitted that the relations between the petitioner and respondent No. 2 were strained and civil and criminal cases between them were going on in different Courts. The impugned order dated 23.2.2000 was, therefore, liable to be quashed. (3) On the other hand learned Counsel appearing for the respondent No. 2, Sri K.K. Arora, Advocate supported the validity of the impugned order. It was urged that the petitioner having substantially removed her house-hold effects from the building in question and her son Anoop Kukshal has taken up residence at 3, Ugrakan Road, Dehradun, therefore, the building shall be deemed to be vacant under clause (a) and clause (c) of sub-section (1) of Section 12 and sub-section (3) of Section 12 of the Act. (4) In support of his submission learned Counsel for the petitioner relied upon the decision of the apex Court in the case of Harish Tandon vs. Additional District Magistrate, Allahabad, 1995 (25) ALR 184 (SC) and Anandi D. Jadhav (Dead) by LRs. vs. Nirmala Ramchandra Kore and other, JT 2000 (4) SC 96: 2000 SCFBRC 245. In the case of Harish Tandon (supra), the dispute was with respect to non-residential building, therefore, the law laid down in the said decision has got no application to the facts of the present case. vs. Nirmala Ramchandra Kore and other, JT 2000 (4) SC 96: 2000 SCFBRC 245. In the case of Harish Tandon (supra), the dispute was with respect to non-residential building, therefore, the law laid down in the said decision has got no application to the facts of the present case. Similarly, in the case of Anandi D. Jadhav (dead) by LRs. (supra), the apex Court interpreted the provisions of Section 13 (1) of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 which are not analogous to the provisions of the Act. The law laid down in the case, in my opinion, supports the case of the petitioner to some extent in as much as even though the younger son of the petitioner, Anoop Kukshal, is alleged to have built the residential house but the petitioner cannot occupy the same or reside in it as of right as her son is not under any legal obligation to provide the petitioner a residential accommodation. (5) In the present case, I need not go deep on the merits of the case in as much as petitioner has already filed an application for recalling the order dated 23.2.2000 which is stated to have been passed ex- parte. The said application is pending disposal before the respondent No. 1. (6) In my opinion, under the facts and circumstances of the present case, it will office of Munsif, Chandausi and after some times brought a written paper and obtained his signature on it and also got affixed his photograph over if. The con tents of document had not been read over and explained to him. They also took him before an officer and obtained his thumb impression there. Thereafter they sent him to his house saying that the bail had been granted. The defendant had no necessary to sell this plot and the price of land in the area at relevant lime was not less than of Rs. one lac. 4. It was further contended that defendant had taken loan from UCO Bank for plantation of popular plants and had mortgaged/hypothecated plot in suit with the above bank in lieu of the said loan and therefore, no agreement to sell in respect of land in suit could be executed:- "5. one lac. 4. It was further contended that defendant had taken loan from UCO Bank for plantation of popular plants and had mortgaged/hypothecated plot in suit with the above bank in lieu of the said loan and therefore, no agreement to sell in respect of land in suit could be executed:- "5. The learned Additional Civil Judge framed necessary issues arising out of pleadings of the parties and on considering the evidence of the parties held that the plaintiffs has successfully proved that the defendant agreed to sell the plot in suit in their favour for a consideration of Rs. 40,000/- and in lieu of it executed agreement to sell on 20.11.1990 after receiving a sum of Rs. 35,000 as earnest money. The plaintiffs were ready and willing to per form their part of agreement. He further held that though it had been shown that land in suit was hypothecated with the UCO Bank, but there was no evidence on record to show that the plaintiffs had knowledge about it and the said hypothecation was also not registered and this fact was concealed from the plaintiffs. With these findings the trial Judge decreed the suit for specific performance of contract. 6. Aggrieved with the above judgment and decree the defendant preferred Civil Appeal No. 70 of 1995. The learned 2nd Additional District Judge, Moradabad, who decided the appeal concurred with the findings recorded by the trial Court holding that the above findings were based on evidence on record. Accordingly, he dismissed the appeal. 7. The above judgment of the Appellate Court has been challenged in this second appeal. 8. Heard learned counsel for the par ties and perused the record. The first contention of the learned counsel for the appellant was that the agreement to sell was obtained by fraud under the pretext that the defendant was executing a surety bond. In order to prove the execution of agreement deed the plain tiffs had examined Kunwar Pal Singh plaintiff (P.W. 1), attesting witnesses of the deed, Gajju Singh (P.W. 2) and Jodha Singh (P.W. 3) and also relied on registered agreement to sell dated 20.11.1990. The trial Court meticulously scrutinised the evidence of above witnesses as well as the evidence of defendant Ratan Lai (D.W. 3). He had also taken into consideration the facts and circumstances of the case. The trial Court meticulously scrutinised the evidence of above witnesses as well as the evidence of defendant Ratan Lai (D.W. 3). He had also taken into consideration the facts and circumstances of the case. He relied on the evidence of the plaintiff Kun war Pal Singh (P.W. 1) and his witnesses Gajju Singh (P.W. 2) and Jodha Singh (P.W. 3) and also had taken into consideration the fact that the agreement to sell was produced before the Sub-Registrar who made enquiry about payment of earnest money from the defendant who accepted the same and recorded a finding of fact that defendant executed deed dated 20.11.1990 knowing that he was executing agreement to sell his property for a consideration of Rs. 40,000 and received earnest money amounting to Rs. 35,000. The first appellate Court on re-appraisal of the evidence concurred with the above finding of the evidence recorded by the trial Court. Both the Courts below have disbelieved the case of the defendant that the had executed only surety bond. The above findings of fact recorded by the Courts below are based on evidence on record and do not suffer from perversity. Therefore, the above concurrent findings of fact cannot be interfered with in his second appeal. The next contention of the learned counsel for the appellant was that the land in suit was previously hypothecated with the UCO Bank in lieu of loan taken by the defendant for plantation of Popular plants and this fact had been proved by his wit nesses Tej Narain Mehrotra (D.W. 1) and therefore, no agreement to sell could be executed as the property was already under the mortgage. The trial Court has held that the factum of mortgage was not known to the plaintiffs nor there was any evidence to show that the defendant disclosed this fact to them. It further held that mortgage deed was not registered and therefore, there could be no presumption of its notice to the plaintiffs. The trial Court has held that the factum of mortgage was not known to the plaintiffs nor there was any evidence to show that the defendant disclosed this fact to them. It further held that mortgage deed was not registered and therefore, there could be no presumption of its notice to the plaintiffs. The first appellate Court held that the alleged pledge of the land with the UCO Bank prior to alleged agreement to sell had no effect on the agreement to sell." (7) The mortgage has been defined under Section 58 of the Transfer of Property Act, which reads as under:- "A mortgage is the transfer of an interest in specific, immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability." (8) The mortgage may be a simple or by conditional sale or by deposit of title-deed. According to evidence of Tej Narain Mehrotra, Manager of UCO Bank (D.W. 1) the defendant had taken loan of Rs. 78,650 on 13.8.1990 and in lieu of it hypothecated his plot Nos. 115 and 124/1. There is nothing on record to show that the plaintiffs had knowledge about the above mortgage. Assuming that the property in question was hypothecated or mortgaged with the UCO Bank in lieu of loan the title of property in question was not transferred to the Bank and it remained with the defendant. The above hypothecation or mortgage simply created a charge over the property and its effect was that the UCO Bank had 1st charge over the property for realisation of debt and nothing more than it. The above hypothecation/mortgage in anyway did not create any bar in execution of agreement to sell or transfer of the property by the defendant. Moreover the plaintiffs had no knowledge of the said hypothecation and obtained agreement to sell for consideration. The learned counsel for the appellant also could not show any provision of-law under which the defendant was debarred from executing agreement to sell in view of the previous hypothecation of the property in favour of UCO Bank. Therefore, hypothecation was no bar to execute agreement to sell. The learned counsel for the appellant also could not show any provision of-law under which the defendant was debarred from executing agreement to sell in view of the previous hypothecation of the property in favour of UCO Bank. Therefore, hypothecation was no bar to execute agreement to sell. (9) Lastly it was contended by the learned counsel for the appellant that the plaintiffs had sought an alternative relief for refund of earnest money and therefore, the relief for specific performance which was a discretionary relief should have not been granted and instead of it the plaintiffs would have been granted alternative relief for refund of earnest money. In support of the above contention he placed reliance on Apex Court decision in Kanshi Ram vs. Om Prakash Jawal and other, 1996 (28) ALR 111. (10) I have gone through the above decision. It was held in the said case that the rise in prices of the property during the pendency of the suit may not be the sole consideration of refusing to decree the suit for specific performance. But it is equally settled law that granting decree for specific performance of a contract of immovable property is not automatic. It is one of discretion to be exercised on sound principles. When the Court gets into equity jurisdiction it would be guided by justice, equity, good conscience and fairness to both the parties. Considered from this perspective in view of the fact that the defendant had claimed alternative relief for damages to be thanked. The apex Court held that the Court would have been well justified in granting alterative decree for damages of Rs. 10 lacs while the sale consideration was Rs. 16,000. In the above case law no principle was laid down that the decree for specific performance should not be granted and only the relief for damages will be equitable relief in a suit for specific performance. In view of peculiar facts and circumstances of the said case the apex Court granted alternative relief for damages for a sum of Rs. 10 lac while sale consideration was only Rs. 16,000. The appellant in. this case could not show any circumstances by which the relief for specific performance could be refused and instead of it relief for refund of earnest money only be granted. 10 lac while sale consideration was only Rs. 16,000. The appellant in. this case could not show any circumstances by which the relief for specific performance could be refused and instead of it relief for refund of earnest money only be granted. The contention of the learned counsel for the appellant was that since alternative relief of refund of earnest money has been sought, therefore, only that relief could be granted, has no force in view of the facts and circumstances of the case. No basis of above contention could be shown and therefore, this Court is not persuaded to accept the above contention. In this way, I find that points in controversy in this appeal have been concluded by concurrent findings of the fact. No substantial question of law is involved in this appeal. The second appeal has, therefore, no force and liable to be dismissed. (11) The appeal is, accordingly, dismissed summarily. There is no order as to costs. Appeal dismissed.