- (1.) SUDHIR Narain, J. This writ peti tion is directed against the order dated 18-5-1999 declaring the vacancy passed by respondent No. 1 and the order dated 13-12-1999 rejecting the application for recalling the said order.
(2.) THE notice on behalf of respondent No. 2, the landlady has been accepted by Sri Swapnil Kumar, Advocate. He made a statement that he docs not propose to file any counter-affidavit and the matter may be decided on merits. Briefly, stated the facts, are that respondent No. 2 moved an application before respondent No. 1 under Section 12/16 of U. P. Act No. 13 of 1972 (in short the Act) with the allegations that the accom modation in question be taken as vacant on the ground that the tenant has vacated. The Rent Control and Eviction Officer passed the following order on 18-5-1999: "vacancy declared" The petitioner filed an application to recall the said order on the ground that Smt. Omwati Devi was the tenant of the disputed premises and without affording any opportunity of hearing to her, the order was passed. The application was contested by respondent No. 2. The Rent Control and Eviction Officer took the view that the order of vacancy should have been challenged by way of filing a writ petition. It was also observed that Prakash Chandra was a tenant and as he has shifted to other place, the accommodation should be deemed as vacant. The petitioners have challenged these orders in the instant petition.
(3.) I have heard the learned counsel for the parties. Learned counsel for the petitioner-contended that the question as to who was the tenant was to be decided after afford ing opportunity to the parties to lead evidence on this question. Petitioner No. 1 had filed the application with the allegation that she was not afforded any opportunity of hearing and the impugned order was passed. The Rent Control and Eviction Officer made an observation that the vacancy could have been challenged by way of filing a writ petition. Once the Rent Control and Evic tion Officer found that the order was to be passed after affording opportunity to the party who was found in possession, he should have recalled the order. The conten tion of the petitioner No. 1 was that there was an agreement of tenancy and earlier the landlady respondent No. 2 had recognised her as tenant in Suit No. 45 of 1992 and Suit No. 3 of 1986. As the petitioner No. 1 had not been afforded any opportunity to lead evidence in respect of her rights and the order declaring vacancy was ex-parte, these orders are liable to be quashed. In view of the above, the writ peti tion is allowed. The order dated 18-5-1999 and 13-12-1999 are hereby quashed. The respondent No. 1 shall decide the matter afresh after affording opportunity to the petitioners within two months from the date of production of a certified copy of this order. The petitioners shall file the objection supported with an affidavit within two weeks from today. Petition allowed. .;