S.U. Khan, J. - (1.) This writ petition has been filed by landlord and is directed against order dated 26th July, 1988 passed by R.C. and E.O./A.D.M. (Supply), Varanasi declaring vacancy of the shop in dispute. The said order has been passed in case No. 12 of 1985, Kamal Kumar Seth v. Ram Das Agarwal. Kamal Kumar Seth, respondent No. 2 in the writ petition had filed allotment application before R.C. and E.O. alleging therein that earlier Ram Das Agarwal, original petitioner since deceased and survived by legal representatives had got the shop in dispute released by R.C. and E.O. for starting his Saari selling business, however, thereafter he had sub-let the shop to respondent No. 3, Vishwa Nath Prasad who was carrying on business of selling sweets from the shop in dispute. The landlord late Sri Ram Das Agarwal contended before R.C. and E.O. that he had not sub-let the shop to respondent No. 3 and respondent No. 3 was carrying on the business of Halwai from the shop in dispute in partnership with landlord. It may be mentioned that under Section 12 (2) of U.P. Act No. 13 of 1972 tenant is prohibited from entering into partnership with any other person but no such restriction has been placed upon landlord. Landlord filed an application supported with his affidavit before R.C. and E.O. Copy of the said affidavit is Annexure-6 to this writ petition. In Para 21 of the said affidavit landlord started that Vishwa Nath Prasad was not the tenant of the shop in dispute, he was only partner in business with the landlord and that possession of the shop in dispute was with the landlord. R.C. and E.O. completely misconstrued the said paragraph of the affidavit and held in the impugned order that contradictory statements had been made in the said Para. In the said Para it was stated that Vishwa Nath Prasad had no concern with the tenancy of the shop in dispute. I do not find any contradiction in the said Para.
(2.) Alongwith writ petition certain documents in respect of partnership in between landlord and respondent No. 3 have been filed the said documents were not filed before R.C. and E.O. In the impugned order it has been mentioned that no documents pertaining to partnership were filed.
(3.) Accordingly writ petition is allowed. Impugned order is set aside and matter is remanded to R.C. and E.O. Parties may file fresh evidence.;