A.N.Varma, J. - (1.) THIS petition is directed against an order dated 5-2-1982 passed by the learned District Judge, Kanpur allowing a revision and setting aside an order dated 9th of February, 1979 passed by the Rent Control and Eviction Officer. By the Impugned order, the learned District Judge has directed the Rent Control and Eviction Officer to dispose of an application filed by the petitioner no. 2 for allotment of the disputed shop in favour of a newly constituted firm styled as M/s. Supreme Pharmacy afresh, after giving the opportunity of being heard to the landlords arrayed here as respondents nos. 3 to 5.
(2.) THE history of the litigation giving rise to this case goes back to the year 1955 when a suit for partition was filed in respect of some properties including the disputed shop which is shop no. 24/1, the Mall, Kanpur. THE suit was eventually tried by this court as original suit no. 1 of 1965. A receiver was appointed in that suit by the court to manage the properties in suit. THE respondents nos. 3, 4 & 5 are admittedly the co-owners of the properties in suit including the shop. It appears that an application was moved in this court by one of the owners for an order directing the receiver to move an application for the release of the disputed shop of which one B. T. Lalwani was admittedly the tenant, so that after a final decree was passed the landlords might be able to get possession of the same for their own use and occupation. This application was allowed by an order dated 27-2-1974, a true copy of which is annexure-1 to the counter-affidavit filed on behalf of the landlords. This court directed the receiver to move an application for release under section 21 (1) (a) of U. P. Act No. 13 of 1972. In pursuance of this order a release application was filed against the said B. T. Lalwani. For some reason the application made no progress and was still pending in the year 1978 when an application was moved in the name of Sri B. T. Lalwani by Smt. Sunita Bahadur Lalwani (petitioner no. 2 herein) claiming as the wife and holder of power of attorney from Sri B. T. Lalwani purporting to be under rule 10 (6) (a) of the Rules framed under U. P. Act No. 13 of 1972 before the Rent Control and Eviction Officer for an order of allotment of the disputed shop in favour of the said M/s. Supreme Pharmacy. In the aforesaid application under rule 10 (6) (a) it was alleged that Sri Lalwani who was carrying on business under the name and style of Supreme Pharmacy in the disputed shop had left for Hongkong in the year 1972, after executing a power of attorney in favour of his wife Smt. Lalwani aforesaid authorising her to look after his interest in the said business. The business was suffering huge losses and had almost "come to a grinding halt" in the year 1978, as a result of which it had become necessary to induct some other experienced businessmen into the partnership. Accordingly, Mrs. Lalwani had decided to induct petitioners nos. 3 and 4 namely Ayodhya Prasad Gupta and Bal Gopal Jaipuriya who had both agreed to join her. Along with the application, a copy of the proposed partnership deed was also enclosed. The prayer in the application was that the disputed shop be allotted in favour of the newly constituted or reconstituted firm in the name of M/s. Supreme Pharmacy. This application was rejected by the Rent Control and Eviction Officer by an order dated 26-12-1978 on the ground that the terms of the partnership deed indicated that it was to be a partnership at will and if Smt. Lalwani walked away from the partnership, the tenancy rights would vest in the remaining partners. In this view, the Rent Control & Eviction Officer observed that the partnership appeared to be a mere cover for sub-letting and hence the application could not be allowed under rule 10 (6) (a). It is undisputed that upon this application, no notice whatsoever was issued either to the receiver or to the respondents nos. 3, 4 & 5. The very next day that is on 27th of December, 1978 another application was moved again in the name of Sri B. T. Lalwani through the same Smt. Sunita Bahadur Lalwani with the same prayer. The allegations made in this application were substantially the same as in the previous application. In the fresh draft partnership agreement submitted, however, there were some changes as regards in whom would the tenancy rights vest in the event of one oi the othei of the partners retiring, obviously with the design to get ovei the objection which was taken by the Rent Control and Eviction Officer in his order dated 26-12-1978. Thus, in the new draft, it was provided that on dissolution of the partnership the tenancy rights shall revert to Sri B. T. Lalwani, the tenant. In support of this application Ayodhya Prasad Gupta and Bal Gopal Jaipuriya also filed an affidavit itating that they were ready and willing to join the partnership and that on the dissolution of the partnership in whatever manner, the tenancy rights would revert to Sri B. T. Lalwani and that the tenancy rights shall not in any way affect the assets and goodwill of the firm.
(3.) IT is pertinent to mention here that neither the Rent Control & Eviction Officer nor even the petitioners considered it necessary or desirable that notice of the application or any sort of intimation for that matter be sent to the receiver or to the respondent nos. 3, 4 and 5. IT is further pertinent to mention that a final decree had in the meantime been passed by this court in the aforesaid suit on 7-9-1978 under which the disputed shop was allotted to the respondent nos. 3, 4 and 5. Be that as it may, the Rent Control and Eviction Officer allowed the application of the petitioners ex parte by an order dated 9-2-1979 holding that the defect pointed out earlier in the previous order dated 26-12-1978 had been removed and that the terms of the new partnership agreement were in order. After making these comments, he accorded permission that Sri Ayodhya Prasad Gupta and Sri Balgovind Jaipuriya may be admitted to the new partnership proposed by Sri B. f. Lalwani. Armed with the aforesaid order dated 9-2-1979 the petitioners state that the said two partners were admitted and the newly constituted firm bearing the same name namely M/s. Supreme Pharmacy commenced its business in the disputed shop. All this seems to have been carried out almost instantly after the passing of the order dated 9-2-1979. It may also be recalled here that B. T. Lalwani, the tenant in whose name the application was moved and who was supposed to have been the third partner and the first party in the partnership deed had admittedly been out of India since 1972, having migrated to Hongkong.;