K.S. Varma, J. - (1.) THIS petition is directed against on order passed by Respondent No. 1 dismissing the Petitioner's revision application Under Section 18 of U.P. Act No. 13 of 1972 (hereinafter referred to as Act). The accommodation in dispute bears municipal No. 88, Nala Fatehganj, Lucknow. On 12.05.1982 one Uma Nand Dwivedi moved the rent control authorities that the premise in question has fallen vacant due to the death of Smt. Ram Kali, who was the previous tenant. One Om Prakash Sharma who claimed to be sitting tenant filed objections a true copy of the same is annexure -1 to the writ petition. On the other hand Respondent No. 3 applied for the release of the accommodation.
(2.) RESPONDENT No. 2 allowed the release application of Respondent No. 3 holding that the accommodation was vacant due to the death of Smt. Ram Kali. It was also held by Respondent No. 2 that the Petitioner is not the legal heir and representative of Smt. Ram Kali. Aggrieved by the order passed by Respondent No. 2 a revision application Under Section 18 of the Act was preferred before the District Judge, Lucknow. The revision application against the order passed by Respondent No. 2 filed by Om Prakash Sharma was decided by Respondent No. 1. This order is annexure -5 to the writ petition. Against the said order this petition has been filed. In this writ petition I have heard learned Counsel for both the parties and they had advanced elaborate arguments on various connected and inter connected questions. After hearing learned Counsel for both the parties, I am of the view that the controversy between the parties has unnecessarily been elongate - definite courts below by parties being allowed to file affidavits at every stage of the proceedings. The short question that awaits consideration is whether the accommodation in question became vacant on the death of Smt. Ram Kali and the same was available for being released at the instance of Respondent No. 3. A perusal of annexure 1 indicates that the specific case of the Petitioner is that Smt. Ram Kali, wife of Kripa Shanker was the tenant of the premises in question. Annexure -6 to the writ petition indicates that Smt. Ram Kali died on 2 -5 -1981 and that document contains an admission made by Ramesh Chandra Agarwal that Smt. Ram Kali has left Om Prakash Sharma, son of late Kripa Shanker. Annexure -7 is the affidavit of Ramesh Chandra Agarwal filed in support of Annexure -6. The Petitioner's case is that he is Kripa Shaker 's son by his first wife and Smt. Ram Kali was the second wife of Kripa Shanker. It is not in dispute that Smt. Ram Kali died issueless. On these facts it was contended on behalf of the Petitioner that he is the heir of Kripa Shanker and has been living in the accommodation in question during the life time of Smt. Ram Kali and, therefore, he is an heir within the meaning of Section 3 of U.P. Act XIII of 1972. The said section is reproduced below: 3. Unless the context otherwise requires (a) Tenant in relation to a building, means a person, by whom its rent is payable, and on the tenant's death (1) in the case of a residential building, such only of his heirs as normally resided with him, in the building at the time of his death.
(3.) A perusal of the record indicates that during proceedings in the case at a late stage the Petitioner attempted to set up the plea that the accommodation in dispute was in the tenancy of Kripa Shanker. A perusal of annexure Clause l to the rejoinder -affidavit indicates that an affidavit was filed by Om Prakash Sharma that the deceased father of the deponent, namely, Kripa Shanker was the tenant of the premises in question. Of course, this plea was rejected by both the courts below but on account of this case being put up at a late stage a good deal of documentary evidence has been filed with the result that the questions which should not have been permitted to be raised were raised. At this stage it would be appropriate to see that the Respondent No. 2 was not justified in accepting this affidavit on the date of the judgment which affidavit set up a case which was no where indicated in the pleadings of the Petitioner. It is on account of admission of this affidavit that there has been so much delay in the disposal of the case and the record has been unnecessarily became voluminous. I have no hesitation in saying that the trial court was not justified in permitting the Petitioner to set up a plea for the first time that Kripa Shanker was the tenant in the premises in question and the plea was rightly rejected by Respondent No. 1.;