S. D. Agarwal, J. - (1.) THIS is a petition under Article 226 of the Constitution, of India arising out of proceedings under section 21 (1) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act).
(2.) THE premises in dispute is premises No. 2-A/196, Azad Nagar, Kanpur. THE petitioner is the landlord. Ram Kumar, respondent no. 2, is the tenant of the said premises. On 27/2Sth August, 1981, an application was filed for release under section 21 of the Act. It was filed initially on the ground that the petitioner had retired from service and he wanted to start legal practice at Kanpur. It may be stated here that the property in dispute is the ground floor portion of the premises. THE first and the second floors are occupied by the landlord himself. During the pendency of the release application, the petitioner suffered a very massive heart attack on 23rd December, 1982, and he was hospitalised in the Institute of Cardiology, Kanpur. The doctors advised him that the petitioner should avoid ascending upstairs and consequently on 15th January, 1983, an affidavit was filed by the petitioner bringing this fact to the notice of the court. The petitioner, thereafter, moved an amendment application, supported by an affidavit dated 21st February, 1983, for amendment of the release application. The Prescribed Authority fixed 7th March, 1983, for disposal of the amendment application. On 7th March, 1983, due to unavoidable reasons, the petitioner was not available to the court and, consequently, the release application was dismissed by the Prescribed Authority by an order dated 7th March, 1983, in the following terms :

" Case called out repeatedly. Nobody response for the landlord. It is now 11.40 Pairokar for the O. Ps. present. Sri Satish Kohli, Advocate too present for O. P. Today it is fixed for disposal of 27 moved by landlord. Objection against 27 filed. Admit it 27-As nobody is present to press, hence it is hereby rejectesd. "

Thereafter, on the same day, another order was passed by the Prescribed Authority to the following effect : " The landlord has not filed any evidence so far. Even he is absent. Order The petition under section 21 of U. P. Act XIII of 1972 is dismissed for want of evidence. "
(3.) IT is, therefore, clear that the Prescribed Authority dismissed the application under section 21 of the Act in default and not on merits. Aggrieved by the decision dated 7th March, 1983, an application was made for restoration. This restoration application was also dismissed on 19th October, 1983. Since the application was not dismissed on merits, the petitioner was advised to file another application under section 21 (1) (a) of the Act. This was registered as Rent Control Case No, 189 of 1983. It was filed on 2nd November, 1983,;