Sudhir Chandra Verma, J. - (1.) THE order of the Rent Control and Eviction Officer dated 30.6.1986 holding that there was no vacancy in the disputed premises, has been set aside in proceedings under Section 18 of U.P. Act 13 of 1972, hereinafter referred to as the Act, by the II Additional District Judge, Moradabad by order dated 25.11.1988 after holding that there is a deemed vacancy under Section 12(2) of the Act and the case has been remanded back to the learned Rent Control and Eviction Officer for fresh decision. An application was initially moved by Smt. Saraswati Devi, landlady, for release of the disputed shop under section 16(1)(b) of the Act. This release application was pursued by the heirs of Smt. Saraswati Devi after her death who have been substituted. According to the allegations made in the aforesaid application, the shop was let out to Mahabir Saran. After the death of Mahabir Saran, the tenant -petitioners have inducted Sheetal Prasad and Dharmendra Kumar who are not members of their family as partners of the new business carried in the shop under the name M/s. Inderman Mahabir Saran. This application was opposed by the tenant -petitioners who claimed that both Sheetal Prasad and Dharmendra Kumar are partners in the business carried on the disputed shop since before 1974 with the consent of the landlady and the tenancy in their favour stood regularised under the provisions of Section 14 of the Act. The firm Indarman Kanhaiya Lal was the tenant and not Mahabir Saran as alleged in the application.
(2.) THE Rent Control and Eviction Officer considered the entire evidence on the record and held that no new partners had been inducted and the business carried on by the firm through its partners were duly recognised by the landlady. The partners of the firm were Chittarmal, son of Devi Das Mahabir Saran son of Inderman, Naresh Kumar son of Kanhaiya Lal, Jaipal son of Budhsain, Sheetal Prasad son of Chheda Lal who were recognised as partners of the firm in 1974. After the death of Kanhaiya Lal, Naresh Kumar, his son, became the partner and after the death of Inderman, his sons Dharmendra Kumar and Mahabir Saran became the partners. Sheetal Prasad was also partner of the aforesaid firm. The shop in dispute was let out to the firm and the aforesaid partners have been duly recognised. The release application of the landlady under Section 16(1)(b) was rejected. The revision under Section 18 of the Act was filed by the landlady against the aforesaid order dated 30.6.1989 passed by the Rent Control and Eviction Officer. The Learned IInd Additional District Judge, Moradabad, in exercise of his powers under Section 18 of the Act, has set aside the aforesaid order holding that there was vacancy under Section 12(2) of the Act in respect of the disputed premises and the deemed vacancy was declared by the learned Judge himself. The case was remanded for reconsideration of the released application.
(3.) IN my opinion, this order can not be sustained. The learned IInd Additional District Judge had no jurisdiction to set aside the order passed by the Rent Control and Eviction Officer holding that there was no vacancy in the disputed accommodation, in exercise of powers under Section 18 of the act in view of the law laid down by the Supreme Court in the case Ganpat Roy and others v. Additional District Magistrate. The order of the Rent Control and Eviction Officer notifying that there existed no vacancy can not be reagitated before the revisional authority as the same contentions would be barred by principles analogous to res judicata. The revision provided under Section 18 is against an order of allotment or release and not against a notification of vacancy. The only remedy against the aforesaid order is to challenge in petition under Article 226 of the Constitution.;