N.D.Ojha, J. - (1.) Respondent No. 2 Raj Kumar Gupta made an application under Section 21 (1)(a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) for release of an accommodation on the ground that the petitioners were its tenants and he needed it bona fide for his own use. The application was contested by the petitioners and was dismissed by the Prescribed Authority. Aggrieved by the order of the Prescribed Authority respondent No. 2 preferred an appeal before the District Judge which, was allowed on 30th January, 1981, by the 1st Additional District Judge, Moradabad, respondent No. 1. It is this order respondent No. 1 which is sought to be quashed in the present writ petition.
(2.) It was urged by counsel for the petitioners that an earlier application for release filed by respondent No. 2 against Murari Lal, predecessor-in- interest of the petitioners, had been rejected and the present application was not maintainable in view of Rule 18(2) of the Rules framed under the Act, the same having been tiled within one year from the date of the dismissal of the earlier application. I find it difficult to accept this submission. Against the order dismissing his application for release respondent No. 2 had filed Civil Misc. Writ Petition No. 1205 of 1975 in this Court. On the date of hearing counsel for respondent No. 2 made a prayer that he may be permitted to withdraw the application under Section 21(l) (a) of the Act inasmuch as on account of changed circumstances respondent No 2 desired to file a fresh application for release. The said prayer was granted by this Court as is apparent from the order dated 15th January, 1979 a copy whereof has been filed as Annexure C A 2 to the counter-affidavit of respondent No. 2. The petitioner was also permitted to file a fresh application under Section 21(1)(a) of the Act. In view of the order dated 15th January, 1979, it cannot be said that the earlier application for release had been dismissed on merits as contemplated by Rule 18(2) of the Rules framed under the Act.
(3.) It was then urged by counsel for the petitioners that Murari Lal was admittedly the tenant of the accommodation in question and he died leaving several legal representatives but the application for release on which the impugned order was passed was filed by respondent No. 2, only against two of the heirs of Murari Lal and the said application was consequently not maintainable. I find it difficult to accept this submission either. The term 'tenant' stands defined in Section 3(a) of the Act. According to the said definition in the case of a residential building such only of the heirs of the tenant as normally resided with him in the building at the time of his death are to be treated as tenants. The case of respondent No. 2 in the release application, a copy whereof has been filed as Annexure 2 to the writ petition, was that it is the petitioners who alone were residing with Murari Lal at the time of his death. This plea has been accepted by respondent No. 1 in the impugned order and it is in this view of the matter that I do not find any substance in the submission that the release application was not maintainable for non-impleadment of other heirs of Murari Lal. In this connection reference may be made to the impugned order. It indicates that before respondent No. 1 it was argued on behalf of the petitioners that "one of the sons of Murari Lal (deceased tenant) named Subhash Chand also lived in this disputed house with the deceased and he was a necessary party in the application under section 21 of U.P. Act No. 13 of 1972". From the aforesaid observation made in the impugned order it is apparent that the only ground on which the release application was argued before respondent No. 1 to be not maintainable for non impleadment of necessary parties was that Subhash Chand, one of the sons of Murari Lal, had not been impleaded in the said application. It was not the argument that all the heirs of Murari Lal were necessary parties. In the writ petition, however, it has been asserted in paragraph 14 that respondent No. I discussed the case of Subbash Chand alone in his judgment but has not referred to the case of Smt. Birbala and her two adult children. According to counsel for the petitioners Smt. Bir Bala and her two adult children were also living with Murari Lal at the time of us death and consequently if not all at least these three persons were also necessary parties to the release application. A counter-affidavit has been filed by respondent No. 2 in which it has been asserted that the only plea which was raised before respondent No. 1 in regard to the non-impleadment of parties was that Subhash Chand had not been impleaded who also was residing with Murari Lal at the time of his death. It has also been asserted in the counter- affidavit that Smt. Bir Bala and her two children were living in another accommodation. A rejoinder affidavit has been filed. The relevant averment in this behalf is contained in paragraph 13 thereof. In the said paragraph what has been stated is that Smt. Bir Bala and her two sons have not completely shifted in another accommodation and their belongings are still kept in the accommodation in dispute". No affidavit of the counsel who argued the appeal on behalf of the petitioners before respondent No. 1 has been filed asserting that it had also been argued before respondent dent No. 1 that Smt. Bir Bala and her two sons were also necessity parties. 1n this background I am inclined to take the view that the observation made by respondent No. I in the impugned order that the plea of the release application being not maintainable for non-impleaded of necessary parties was based only on the ground that Subhash Chand had not been impleaded. As regards Subbash Chand, the finding recorded by respondent No. 1 that he was not living with Murari Lal at the time of his death is a finding of fact based on appraisal of evidence and does not suffer from any such error which may justify interference in a writ petition.;