K. C. Agrawal, J. - (1.) SHOP No 20, Mahatma Gandhi Marg, Allahabad belongs to Sardar Gopal Singh respondent No. 4. One Sardar Uttam Singh Oberai was originally the tenant of the shop. As he fell into arrears of rent a suit was filed by respondent No. 4 for recovery of arrears and rent and ejectment against him. The suit was, later compromised and Sardar Gopal Singh respondent No. 4 permitted Sardar Uttam Singh Oberai to enter into a partnership with Subhash Chandra Malik respondent No. 3. Consequently, the two entered into the partnership and started a firm known as M/s. Allied Electronic Corporation. Subsequently, the partnership was dissolved on March 31 1971, Before the dissolution of the firm, respondent No. 3 obtained an allotment order of the shop in his name. After dissolution the respondent No. 3 constituted a new partnership on 1-4-1971 consisting of himself, his mother and his brother's wife and thereafter continued the business in the same old name that is M/s. Allied Electronic Corporation. On 1st April, 1974 Ramesh Chandra Malik, another brother of respondent No. 3 was also taken as a partner in the firm.
(2.) ON 1st September, 1976 Dr. (Mrs.) Gyan Thapa, the petitioner filed an application for allotment of the aforesaid shop, viz. No. 20, Mahatma Gandhi Marg on the ground that a new partner having been admitted on 1st April, 1974, a vacancy in law had been caused. The application was resisted by Subhash Chandra Malik, respondent No. 3. He although admitted the admission of Ramesh Chandra Malik as a partner but denied that any vacancy was created as a result thereof. He claimed that the application filed by the petitioner was mala fide inasmuch as the same was got manipulated by Sardar Gopal Singh, the landlord respondent No. 4. Sardar Gopal Singh, respondent No. 4 also filed a reply to the application filed by the petitioner and admitted that as Ramesh Chandra Malik had been taken as a new partner in the firm M/s. Allied Electronic Corporation on 1st April, 1974, the shop would be deemed to be vacant within the meaning of sub-section (2) of Section 12 of U. P. Act No. 13 of 1972 and as such was liable to allotment.
(3.) THE Rent Control and Eviction Officer rejected the application of the petitioner on 9-5-1977. Against the said order, the petitioner preferred a revision under Section 18 of U. P. Act No. 13 of 1972. THE revision met with the same fate. Feeling aggrieved, the petitioner has filed the present writ petition. Before dealing with the points, a brief resume of the findings may be given here. The Rent Control and Eviction Officer held that as the three partners had been admitted in 1971 by Subhash Chandra Malik, respondent No, 3 the tenancy of these four partners was entitled to be regularised under Section 14 of U. P. Act No. 13 of 19/2. He also found that as one of the partners taken in 1971 was Smt. Savitri Rani, the admission of Ravish Chandra Malik in 1974 being in conformity with subsection (2) of Section 12 of U. P. Act No. 13 of J972, the premises could not be deemed to be vacant within the meaning of sub-section (4) of Section 12 of the Act. In appeal the learned District Judge also took the same view. He relying on a decision of this Court reported in Shyam Las v. III Additional District Judge, Budaun, 1976 AWC 766 held that as the partnership came into existence on 1st April, 1971, the provisions of sub-section (2) of Section 12 of the Act were not applicable to it. In other words the view taken by the learned District Judge was that the admission of partners in 1971 would not create a vacancy under Section 12 of the Act. He also found that as Ravish Chandra Malik was a member of the family of Smt. Savitri Rani his admission could not be considered as a ground for holding that the premises was vacant.;