K. M. Dayal, J. - (1.) THE present writ petition has been filed by the tenant against the rejection of his application under section 28(5) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. That Act is hereinafter referred to as the 'Act'.
(2.) THE facts of the case are that the respondent no. 2, landlord, gave the disputed premises in the tenancy of the petitioner by virtue of a compromise in a civil suit. In that compromise, the defendant was permitted to occupy the disputed portion at a rent of Rs. 6/- per month. Subsequently an application under section 21 of the Act was filed against the petitioner by the respondent no. 2 for his eviction. That application was initially allowed by the Prescribed Authority, but on appeal under section 22 of the Act, that judgment was set aside and the case was remanded for rehearing by the District Judge, Orai on 31-1-1979, In Rent Appeal No. 9 of 1979. The respondent damaged the roof of the petitioner's portion and thereupon the petitioner moved an application under section 28 of the Act for annual repairs aswell as for major repairs. The matter went before the Prescribed Authority. The Prescribed Authority by its order dt. 13-12-1978, dismissed the application holding that the disputed room required reconstruction and could not be repaired, and that the room had already been released in favour of respondent no. 2 by the Prescribed Authority in case No. 26 of 1977. It is apparent from the judgment that the finding about the condition of the premises has been based on the finding of the Prescribed Authority in case no. 26 of 1977. That judgment has been set aside and the case has been remanded by the Appellate Authority under section 22 of the Act. As the finding of the Prescribed Authority is based on the finding in the case under section 21, which has been set aside, this judgment cannot be sustained. The Prescribed Authority should examine the evidence itself and come to its own finding in proceedings under section 28 (5) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Had the judgment in the case under section 21 become final, it was a different thing, but, as that judgment had not become final, the judgment of the Prescribed Authority, dated 13-12-1978, passed in the case under section 28 (5) of the Act, cannot be upheld. In the result, the present petition is allowed. The judgment and order dated 13-12-1978, passed by the Prescribed Authority in case no. 32 of 1977 is quashed. The Prescribed Authority may decide the matter afresh in accordance with law and observations made above. The parties are directed to bear their own costs. Petition allowed.;