- (1.)This is a Plaintiff's second appeal from a decree of the II Civil judge, Kanpur reversing that of the III Addl. Munsif Kanpur and dismissing the Plaintiff-Appellant's suit for an injunction to restrain the first Defendant-Respondent from taking possession of a shop in pursuance of an order passed by the Rent Control and Eviction Officer Kanpur "allotting" the shop to him. The facts are these. The Plaintiff-Appellant Rama Devi is a tenant of the entire premises known as No. 50/171 Naughara Kanpur of which the owner and landlord is Ananti Devi, the second Defendant-Respondent. The tenancy in favour of the Appellant was created more than twenty live years before the filing of the suit, the agreed rent being Rs. 37/8/- p.m. The Plaintiff alleged in her plaint that from the very commencement of the tenancy ^e had been sub-letting the accommodation to various subtenants under the express sanction and consent of the landlord; that she sub-let a shop on the ground floor to one Durga Prasad Sonar; that this sub-tenant defaulted in payment of rent and consequently she obtained a decree for his ejectment on 24th February, 1958 and in March she obtained possession of the accommodation; that before executing the decree she informed the Rent Control and Eviction Officer (hereinafter called R.C. and E.O.) of the vacancy of the aforesaid accommodation and applied for its release in her favour on the ground that she needed it for her own use that her application was ultimately rejected on grounds which were extraneous, irrelevant and immaterial; that the order was also illegal because it purported to create a sub-tenancy of the shop without the consent of the Plaintiff that it was also illegal because it was passed in violation of Rules 6 and 7 of the U.P. Control of Rent and Eviction Rules. The Plaintiff further alleged that the R.C. and E.O. while rejecting her application for the release of the shop allotted it to the first Defendant Radhey Shyam who wanted to occupy it. She contended that the order in favour of Radhey Shyam was invalid and without jurisdiction and he had no right to occupy the hop. She asked for an injunction to restrain tae Defendant Radhey Shyam from taking possession of the shop in pursuance of the illegal order of allotment.
(2.)The owner of the premises, Ananti Devi, was impleaded as proforma Defendant but no relief was claimed against her. The suit was contested by Radhey Shyam, the first Defendant, who is the "allottee" of the accommodation under the order of the R.C. and E.O. He denied that the order of the Rent Control and Eviction Officer rejecting the Plaintiff's application under Rule 6 and allotting the shop to him was illegal or ultra vires. He asked for the dismissal of the suit.
(3.)The trial court framed three issues: (1) Whether the allotment order in favour of the Defendant No. 1 was illegal; (2) whether the suit was barred by Section 16 of the U.P. Control of Rent and Eviction Act; and (3) to what relief the Plaintiff was entitled It held that the order of allotment was passed in violation of Rule 7 of the U.P. Control of Rent and Eviction Rules inasmuch as the Plaintiff had not been consulted before the shop was allotted to the Defendant Radhey Shyam. It also held that the order was without jurisdiction as it purported to allot a portion of the accommodation in the tenancy of the Plaintiff whereas the R.C and E.O. had no jurisdiction to split up and divide the accommodation into two. It decreed the suit and issued a permanent injunction restraining the Defendant-Respondent Radhey Shaym from taking possession of the disputed accommodation.