B. Upadhya, J. - (1.) THIS is a Plaintiff's appeal arising out of a suit for declaration and injunction.
(2.) A shop situated in premises No. 47/4 Hatia Bazar. Kanpur was occupied by some person who vacated it on 1 -5 -1949(sic). The Plaintiff then occupied that shop and claims that he paid rent of the shop to the owner of the house on 22 -5 -1949 from which date it is contended the Plaintiff became a tenant of the shop. The Defendant applied for allotment of the shop under the UP Control of Rent and Eviction Act on 30 -5 -1949 and an allotment order was passed in favour of Defendant No. 1 on 3 -8 -1949. I appears that the Rent Control & Eviction Officer had issued a notice to the Plaintiff to vacate the premises and give possession to the allottee and the said order is said to have been received by the Plaintiff on 26 -9 -1949. The Plaintiff claimed that the allotment and the notice requiring him to vacate were all illegal and invalid on the ground that the shop was not vacant within the meaning of the law and it could not be allotted to the Defendant No. 1 by the Rent Control and Eviction Officer. The Defendant contested the suit and pleaded that the Plaintiff was never in possession of this disputed accommodation and it was actually taken when the application for allotment was made and that the suit was bad for nonjoinder of the parties inasmuch as the Rent Control and Eviction Officer had not been impleaded and that the Plaintiff could not challenge the orders of the Rent Control and Eviction Officer in a civil court. Defendant No. 2 is the house owner and is a proforma Defendant in the suit. The trial court held that the accommodation was vacant when the Defendant No. 1 had put in his application for allotment for accommodation and that the order of the Rent Control and Eviction Officer was valid, that the suit was not bad for non joinder of necessary parties and on these findings the Plaintiff's suit was dismissed. On appeal the lower appellate court found that inasmuch as the Plaintiff had no allotment order in his favour the shop in dispute should be treated as vacant and a valid allotment could be made of the same. The lower Appellant court also found that in the notification issued by the District Magistrate he had reserved the right to allot any accommodation whether the same was reported by the landlord or by an outgoing tenant or by any third person to him or not and the allotment even in the absence of any report relating to the vacancy was valid It was further found that the allotment order in the present case was valid and on these findings the Plaintiff's suit was dismissed.
(3.) MR . D. Sanyal Learned Counsel for the Appellant contends that according to the Plaintiff's allegations the shop was vacated by the former tenant on 1 -5 -1949 and that the Plaintiff occupied it on 27 -5 -1949 and became a tenant on 1 -6 -1949 when he paid rent for the shop to the owner of the house. Learned Counsel contends that an accommodation may be held to be vacant under the Act if it be vacant in accordance with the definition of that word as given in S. 2 (h) of the UP Control of Rent and Eviction Act. This provision reads as follows: 2 (h) "vacant" where used with reference to any accommodation, includes an accommodation about to fall vacant, an intimation whereof has been sent by the tenant of the landlord to the District Magistrate;