- (1.) SUDHIR Narain, J. This writ peti tion is directed against the order dated 25-3-1994 whereby the disputed accom modation has been declared as vacant and the order of release dated 8-4-1994 passed in favour of landlord Respondent No. 1.
(2.) ADMITTEDLY Respondent No. 1 is the landlady of the disputed premises. The father of the petitioner was its tenant. Dr. Rajendra Nath Sen and Sri Durga Das Sen, predecessors-in-interest of Respondent No. 1, filed suit for eviction of the petitioner's father before the Judge Small Causes Court on the ground that he has sub-let the shop in dispute to West Bengal State Handloom Weavers Co-operative Society Ltd. , Respondent No. 3. The defendant contested the suit with the al legations that the premises was not sub-let but the defendant was carrying on sale of products of Respondent No. as commis sion agent. The trial Court dismissed the suit on 23-5-1985. The plaintiffs filed revision against this judgment under Sec tion 25 of Small Causes Court Act, which is still pending. Respondent No. 1 moved an ap plication under Section 16 (b) of U. P. Act No. XIII of 1972 for release of the shop in occupation of the petitioner with the al legations that the petitioner had removed his effects from the disputed shop. Shri J. C. Wahal, father of the petitioner, was carrying on business in the name of M/s. Suman Corporation but he, without per mission, permitted it. to be occupied by others and now the business is being done in the name of Tantu Sarecs. On this ap plication the Rent Control and Eviction Officer called for a report from the Rent Control Inspector. He submitted the report on 25- 3-1994 that on the spot Respondent No. 3, was carrying on busi ness and therefore the accommodation can be treated as vacant. The notice was sent in the name of Sri J. C. Wahal. As none appeared on behalf of J. C. Wahal the ac commodation was declared as vacant on 23-5-1985. Subsequently on the applica tion of Respondent No. 1, considering her need, it was released in her favour on 8-4-1994. These orders have been challenged in the present writ petition. I have heard Sri P. N. Saxena learned counsel for the petitioner and Sri V. K. S. Chaudhari, learned Senior Coun sel, for the Respondent No. 1.
(3.) LEARNED counsel for the petitioner contended that the petitioner was not served with any notice. The notice was issued to J. C. Wahal who has died long ago before issue of notice. This fact has not been denied that J. C. Wahal has died prior to issue of notice in his name. The petitioner has filed an applica tion for review/recalling the order on the ground that Respondent No. 3 is not car rying on business and he was not served, with a notice and, therefore, the order declaring vacancy and the subsequent order of release passed on the basis that the disputed accommodation is vacant be recalled. The learned counsel for the respondent contended that as the review application under Section 16 (5) is pend ing and secondly the revision under Sec tion 18 of the Act is also maintainable, the writ petition is not maintainable and deserves to be dismissed.;