S.U. Khan, J. - (1.) THIS writ petition has been filed by tenant and is directed against orders declaring vacancy and releasing the house in dispute in favour of landlord respondent No. 3 passed by R.C. and E.O. and the order of the Revisional Court rejecting the revision which was directed against said orders. By virtue of recent authority of Supreme Court in Achal Mishra v. R.S. Singh, : 2005 (59) ALR 591 (SC) : 2005 (29) AIC 110 (SC). in revision filed under section 15 of U.P. Act No. 13 of 1972 against order of release or allotment passed under section 16 of the Act by R.C. and E.O. Order declaring vacancy can also be challenged and validity of order declaring vacancy may also be seen in such revision. R.C. and E.O./A.C.M. -II Kanpur in Rent Case No. 51 of 1987 relating to premises No. 93/130, Anwar Ganj, Kanpur Sarfudam v. Mohd. Omar, passed an order on 19.12.1987 holding that there was vacancy of the house in dispute as tenant petitioner had allowed the premises in dispute to be occupied by Suleman and Karimullah who were not his family members. Karimullah is son of real brother of tenant petitioner and Suleman is husband of Karimullah's sister. In this manner tenant's real nephew and niece alongwith her husband are residing in the house in dispute along -with the tenant. Even though nephew and niece are not included in the definition of family member as provided under U.P. Act No. 13 of 1972, however, if such close relations are residing with the tenant in the tenanted house vacancy does not come into existence vide Ganesh Trivedi v. Sunder Devi. : 2002 (47) ALR 276 (SC)After declaring vacancy on 19.12.1987 R.C. and E.O. on 11.5.1988 (or 19.5.1988) released the building in dispute in favour of respondent No. 3 who is Mutawalli of a wakf which is running a school/madarsa from an other building. Against the said order Rent Revision No. 78 of 1988 was filed by tenant petitioner. The Revisional Court/XIII, A.D.J. Kanpur dismissed the revision on 27.7.1990, hence this writ petition. I am of the opinion that by virtue of section 105(1), C.P.C., which is quoted below even if vacancy declaration order was not challenged in the revision filed against release order illegality in the said order could be set up as a ground to challenge the release order: C.P.C. section 105(1) - -Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, detect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.
(2.) RELEASE order passed under section 16 could be challenged by sitting tenant on the limited ground that there was no vacancy, hence release order was bad in law. I have already held in the earlier part of this judgment that there was no vacancy. Accordingly all the three orders i.e. order declaring vacancy, releasing the house in dispute in favour of respondent No. 3 and the order of the Revisional Court (XIIIth A.D.J., Kanpur) dated 27.7.1990 are quashed.
(3.) HOWEVER , I have held in Khursheeda v. A.D.J. : 2004 (55) ALR 586. that while granting relief against eviction to the tenant in respect of building covered by Rent Regulation Act, Writ Court is empowered to enhance the rent to the reasonable extent.;