JUDGMENT Hon'ble Prakash Krishna,J. The aforesaid writ petition was finally heard and decided by the judgement dated 18-5-2007. This is an application on behalf of the respondent tenant to recall/restore the writ petition to its original number and the judgement and order dated 18-5-2007 be recalled. 2. The said application has been filed on behalf of the respondent tenant on the pleas inter alia that when the case was listed, it could not be marked by the clerk of the respondent's counsel and as such, the respondent's counsel could not appear in the case at the time of hearing. The respondent had no knowledge about the order dated 18-5-2007 and he came to know about the said order only on 25-7-2007. 3. Before considering the aforesaid application, it is necessary to notice the background facts of the case. It is also not out of place to mention here that the learned counsel for the parties had jointly agreed that the recall application and the writ petition, both, may be heard simultaneously as per entry in the order sheet dated 4-12-2009. 4. The petitioner, now a retired personnel from Indian Army, had filed an application for releasing the disputed shop in occupation of the present respondent tenant, on the ground of personal need, way back in the year 1992. It is a double storeyed shop and its release was sought under Section 21 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (herein after referred to as 'U.P. Act No. 13 of 1972'), on the ground of bonafide need of the petitioner landlord. It was pleaded that the petitioner is going to retire shortly; he has no other shop except the disputed shop and after his retirement, he intends to start his business from the disputed shop to make his both ends meet. It was registered as case no. 10 of 1992. 5. The release application was contested by the respondent tenant by denying the allegations made in the release application. It was pleaded that the landlord is getting Rs. 2,000/- per month rental income and after retirement, he would be getting around Rs. 3,000/- per month as pension and as such, it is not necessary for him to augment his income by engaging him in any business as his two sons are already engaged in independent business. It was pleaded that the landlord is getting Rs. 2,000/- per month rental income and after retirement, he would be getting around Rs. 3,000/- per month as pension and as such, it is not necessary for him to augment his income by engaging him in any business as his two sons are already engaged in independent business. At the same time, the respondent tenant admitted in his reply that he has got other shops and is carrying on the business of selling cement and building materials by using the adjoining shop as store and using the disputed shop for the purposes of 'sale counter'. The business is being carried on under the name and style of 'Punjab Cement Store'. The other shop, which is situate in front of the dispute shop, is in occupation of his son who is carrying on the business of building materials and marble under the name and style of 'Juneza Marble'. The said son has got another shop at Punjabi Colony which he is using as a 'godown'. The said son is separated from him and he has no concern with the said son. Another son, who is unmarried, is doing business along with him from the disputed shop. 6. The parties led evidence in support of their respective cases. The Prescribed Authority by its judgement and order dated 16-12-2000 recorded a categorical finding that the respondent tenant is a moneyed person. He has also got agricultural land as is apparent from Khasra and Khatauni, being paper no. C-32 wherein his name is recorded as Bhumidhar with transferable right. The respondent tenant has got the map sanctioned by S.D.M. Dhampur for construction of residential house in his name and five shops at Nagina Road near K.M. Inter College. There being no rebuttal from the side of the respondent tenant, it was concluded that the need of the petitioner landlord is bonafide and genuine and the respondent tenant will not suffer any loss or injury if the shop in question is released in favour of the petitioner landlord. There being no rebuttal from the side of the respondent tenant, it was concluded that the need of the petitioner landlord is bonafide and genuine and the respondent tenant will not suffer any loss or injury if the shop in question is released in favour of the petitioner landlord. The said order was challenged in appeal, being Rent Control Appeal No. 2 of 2001 by the respondent tenant which came up for consideration before the Additional District Judge, Court No. 4, Bijnor, who, without setting aside the findings on the merits of the case, as were recorded by the Prescribed Authority, allowed the appeal on a short ground that the release application was not maintainable, a plea which was raised for the first time in the appeal, in view of Full Bench decision of this Court in the case of Nutan Kumar and others Vs. IInd Additional District Judge and others, 1993(2) ARC 204. Being aggrieved by the appellate order dated 23-12-2005, the above writ petition was filed in this Court. The said writ petition remained pending for a considerable period of time and the respondent tenant, through was served, chose not to file any counter affidavit. The reason for not filing the counter affidavit is not far to seek. It is apparent that the counter affidavit was not filed knowing well that the decision of the lower appellate court based on Full Bench decision of this Court in the case of Nutan Kumar and others (supra) is no longer a good law as the said decision was already reversed by the Apex Court in the case of Nutan Kumar and others Vs. IInd Additional District Judge and others, 2002(2) ARC 645. Ultimately, the case was heard in the absence of the learned counsel for the tenant respondent and the writ petition was allowed by the following order:- " This writ petition is directed against order dated 23rd of December, 2007 passed by Additional District Judge, Court No. 4, Bijnore whereby the court below has set aside release order passed in favour of petitioner in P.A. Case No. 10 of 1992. It appears that the present petitioner filed an application under section 21(1(a) of the U.P. Act No. 13 for release of a shop situate in Qasba Dhampur detailed at the foot of release application against contesting respondent on the ground of bonafide need. It appears that the present petitioner filed an application under section 21(1(a) of the U.P. Act No. 13 for release of a shop situate in Qasba Dhampur detailed at the foot of release application against contesting respondent on the ground of bonafide need. The said release application was allowed by Prescribed Authority, after contest by order dated 16th of December, 2000. Tenant filed rent control appeal no. 2 of 2001 against release order which came up for consideration before the court below. Appeal has been allowed on short ground that release application was not maintainable in view of section 11 of U.P. Act No. 13 of 1972. Findings on the question of bonafide need and comparative hardship as recorded by Prescribed Authority were not gone into by appellate court. During the pendency of appeal written statement was got amended and para 25A was inserted therein. On the basis of allegations made in amended para to the effect that provisions of U.P. Act No. 13 of 1972 are not applicable as the shop was let out without an allotment order, the appellate court accepted the said contention and allowed the appeal. Heard the learned counsel for the petitioner. Even if a person has been let out accommodation without allotment order, as has been held by Apex Court in the case of Nutan Kumar and others Vs. IInd Additional District Judge and others, 2002(2) ARC 645 the contract of tenancy would be binding in between tenant and landlord. Apex Court while reversing the judgement of a Full Bench of this Court has held that proceeding against such tenant who has been let out without allotment order can be initiated by landlord under section 20 of the Act. Said principle shall be applicable with all its force with regard to the proceedings under Section 21 of the Act also. Controversy involved in the present case is squarely covered by the law laid down by the Apex Court in the case of Nutan Kumar (supra). In view of above discussion, writ petition succeeds. Judgement dated 23rd of December, 2005 is hereby quashed. Matter is restored back to the appellate court to hear and decide the Rent Control Appeal No. 2 of 2001 on merits expeditiously preferably within a period of 6 months from the date of production of certified copy of this order. The writ petition is allowed" 7. Judgement dated 23rd of December, 2005 is hereby quashed. Matter is restored back to the appellate court to hear and decide the Rent Control Appeal No. 2 of 2001 on merits expeditiously preferably within a period of 6 months from the date of production of certified copy of this order. The writ petition is allowed" 7. To recall the said judgement and order, as stated hereinabove, the present application has been filed. Even then, the respondent tenant did not prefer to file a counter affidavit to the writ petition. When it was made clear to him that the writ petition if restored shall be heard and decided even if no counter affidavit is filed, a counter affidavit has been filed to the writ petition which is on the record. 8. One more intervening event has taken place. After the judgement of this Court, the matter was taken up by the first appellate court and it proceeded to decide the appeal on merits. The respondent tenant chose not to appear before the appellate court and the appellate court ultimately by a detailed order dismissed the appeal on 2-5-2008. A copy of the judgement of the appellate court has been filed along with the counter affidavit to the restoration application filed by the petitioner landlord after serving its copy on 12-12-009 on the respondent tenant. Noticeably, the respondent tenant has not dared to challenge the judgement dated 2-5-2008 so far. About two years are going to expire. The petitioner landlord has applied for execution of the release order. It is registered as execution case no. 3 of 2008. Notices of the said execution case have been served on the respondent tenant as is apparent from the order sheet of the executing court filed as Annexure-2 to the counter affidavit of the restoration application and the respondent tenant is appearing before the executing court. The order sheet of various dates have been signed by the respondent tenant beginning from 4-7-2008. 9. Secondly, the respondent tenant has not prayed for staying the effect and operation of the judgement dated 18-5-2007 during pendency of these proceedings. Rather, he prayed for and was granted the stay order by order dated 4-12-2009 staying his eviction from the shop in question. 10. 9. Secondly, the respondent tenant has not prayed for staying the effect and operation of the judgement dated 18-5-2007 during pendency of these proceedings. Rather, he prayed for and was granted the stay order by order dated 4-12-2009 staying his eviction from the shop in question. 10. Heard Sri V.C. Srivastava, learned counsel for the respondent tenant in support of the restoration application and in opposition to the writ petition and Sri Amit, Advocate for the petitioner landlord. 11. It was rightly submitted by the learned counsel for the petitioner landlord that the respondent tenant is not entitled for any indulgence from this Court. His conduct is blameworthy and he took a calculated risk by not filing the counter affidavit to the writ petition and deliberately did not appear at the time of hearing of the writ petition, with a view to gain time. This, according to the learned counsel for the petitioner, amounts abuse of the process of Court. Neither there is any equity or law in favour of the respondent tenant, who, on his own showing, has got number of shops. Attention of the Court was invited towards paragraphs 21 and 22 of the written statement/objection filed by the respondent tenant. In paragraph-21 the respondent tenant has admitted that he is in occupation and possession of the adjoining shop having Western front and is carrying on the business of selling cement and building materials from both the shops jointly, under the name and style of 'Punjab Cement Store'. He has further admitted that his son is also carrying on the business of selling marble and building materials from a different shop which is in front of the disputed shop and he has also got a godown in Punjabi Colony which is being used by his son with whom he has no concern. 12. The matter was examined by the Prescribed Authority who found that the respondent tenant has got constructed five shops besides a residence at Nagina Road near K.M. Inter College. Besides the above, he has got agricultural land. The theory that his one son is separated from him was not accepted in the face of the registered sale deed and the revenue records showing that the respondent tenant along with his two sons has purchased immovable property jointly. Besides the above, he has got agricultural land. The theory that his one son is separated from him was not accepted in the face of the registered sale deed and the revenue records showing that the respondent tenant along with his two sons has purchased immovable property jointly. A finding was recorded that the respondent tenant has several shops at his disposal and will not suffer any loss or injury if the shop in dispute is released in favour of the petitioner landlord who is going to retire shortly and wants the disputed shop. This is the only shop owned by him to augment his income. None of the findings recorded by the Prescribed Authority, as noticed hereinabove, was reversed by the appellate court in the first round of hearing of the appeal. 13. In this Court, the petitioner landlord has reiterated the plea that the respondent tenant has got three other shops in tenancy of different landlords in Qasba Dhampur, vide para-16 of the writ petition. The contents of para-16 of the writ petition have been dealt with in para-11 of the counter affidavit. Para 16 of the writ petition and para-11 of the counter affidavit are reproduced below:- "16- That the impugned order of the lower appellate court is wrong and illegal as the lower appellate court has failed to consider that the respondent has three other shops in tenancy of the different landlords in Qasba Dhampur." Counter Affidavit "11- That, in reply to the contents of para 16 of the writ petition it is submitted that answering respondent has no other shop from Nagar Palika Parishad Dhampur as certified by Adhishashi Adhikari Nagar Palika, Dhampur. A copy is annexed herewith and marked as Annexure No. 1 to this affidavit." 14. Noticeably, the respondent tenant could not dare to deny in the counter affidavit that he has no other shop except the shop in question. Along with the counter affidavit, a certificate from Nagar Palika Parishad has been filed to show that the respondent tenant has got no other shop on tenancy from Nagar Palika Parishad. The said certificate is of no avail to the respondent tenant. It is not the case of the petitioner landlord that the respondent tenant is in occupation of any other shop of Nagar Palika Parishad. The said certificate is of no avail to the respondent tenant. It is not the case of the petitioner landlord that the respondent tenant is in occupation of any other shop of Nagar Palika Parishad. Apart from the above, the said certificate, on the face of it, does not inspire any confidence as it is undated and it appears to be a private document signed by some body for Executive Officer, Nagar Palika Parishad, Dhampur. No such document was filed before the court below. The said certificate does not contain any letter number etc. or the reference with regard to which it has been issued. Being an undated document and there being no stamp of Nagar Palika Parishad, the document is worthless and no reliance can be placed upon it. 15. The above restoration application has been filed on the ground that when the case was listed on 18-5-2007, it could not be marked by the clerk of the respondent's counsel and as such, the respondent's counsel could not appear. Except making a bald statement in the affidavit sworn by Vishal Juneza son of the respondent tenant, no corroborative material has been filed in support thereof. Neither affidavit of the clerk concerned has been filed nor a copy of the cause list has been annexed to show that the case was not marked. Obviously, Vishal Juneza, who was not present in the High Court, could not say anything in this regard. The affidavit, it appears, has been very cleverly drafted. In para-5 thereof it has been stated the respondent acquired knowledge about the order dated 18-5-2007 only on 25-7-2007. The source of getting the knowledge has not been disclosed in the said affidavit. The averments made in the affidavit do not inspire confidence. But even then, in the interest of justice, the Court thought it fit to give an opportunity to the parties to advance their arguments on the merits of the case and the matter was heard on merits of the writ petition in order to do justice and finds that the shop in dispute, in view of undisputed facts has been rightly ordered to be released. 16. In nutshell, it is a case- 1. where the petitioner landlord applied for release of the disputed shop to establish himself after his retirement in a business at the fag end of his service, about 18 years ago. 16. In nutshell, it is a case- 1. where the petitioner landlord applied for release of the disputed shop to establish himself after his retirement in a business at the fag end of his service, about 18 years ago. He has no shop admittedly, to establish himself and has retired now. He was in Indian Army Service. On the other hand, the respondent tenant is a moneyed and rich person of the Kasba having large number of landed property in the form of agricultural land, residential house, five shops for which he got the map sanctioned and three other shops wherein he is carrying on the business, besides the shop in dispute. The above facts are almost undisputed or could not be disputed at this stage of litigation. The question arises as to whether on these facts, the respondent tenant, who succeeded to linger on the release proceedings for about 18 years, is entitled to get any relief from this Court. It is not out of place to mention here that the Rules framed under U.P. Act No. 13 of 1972 provide that every release application shall be decided as far as possible within a period of two months from the date of its presentation, vide Rule 15(3). Similarly, as far as possible, an appeal shall be decided within six months from the date of its presentation, vide Rule 7(7). The intention of the Legislature is loud and clear. By filing the present restoration application, the respondent tenant has succeeded to gain further time of about three years. 2. In pursuance of the judgement passed by this Court on 18-5-2007, the appeal has been reheard and decided by the judgement dated 2-5-2008 and the said judgement has attained finality, as it has not been challenged so far by the respondent tenant, wherein the need of the petitioner landlord has been found to be bonafide and genuine and on the question of comparative hardship, finding has been recorded in favour of the petitioner. 3. The respondent tenant is fully aware about the appellate court's judgment dated 2-5-2008 as he is contesting the execution case no. 3 of 2008 and seeking adjournments on one ground or the other from the executing court. 4. The conduct of the respondent tenant is blameworthy and he does not deserve any sympathy from court. 3. The respondent tenant is fully aware about the appellate court's judgment dated 2-5-2008 as he is contesting the execution case no. 3 of 2008 and seeking adjournments on one ground or the other from the executing court. 4. The conduct of the respondent tenant is blameworthy and he does not deserve any sympathy from court. He by legal engineering succeeded to prolong the litigation with oblique motives for about 18 years, and that too, against the landlord who is now an Indian Ex Army Personnel, while the respondent tenant has got so many shops. 17. In view of the above discussions, on the facts of the present case, no useful purpose is going to be served by recalling the judgement dated 18-5-2007. It will only prolong the litigation and agony of the parties. The issues between the parties stand settled and finally adjudicated, there being no challenge to the judgment dated 2-5-2008 passed by the first appellate court. 18. Viewed as above, no case for recalling the judgement dated 18-5-2007 has been made out. The respondent tenant was not prevented by sufficient cause and as such no case to recall the judgement dated 18-5-2007 has been made out. Moreover, the delay in filing the restoration application is also not sufficiently explained. 19. The application is, therefore, dismissed with costs of Rs. 10,000/- (Rs. Ten thousand only) which stood paid up in the light of the order dated 20-11-2009.