POONAM SRIVASTAV, J. - (1.) HEARD learned Counsels for the parties.
(2.) COUNTER and rejoinder affidavits have been exchanged which are on record. A release application was filed under section 21(1) (a) of U.P. Act No. 13 of 1972 by the landlord for the portion in occupation of the petitioner as ten­ant which is part of house No. B-27/5, Durgakund, Varanasi. The allegation in the release application was that the petitioner has acquired certain accommo­dation in vacant condition and, therefore, he is liable to be evicted. The release application was decided by the Prescribed Authority vide order dated 31.5.2004.
(3.) THE contention of the Counsel for the petitioner is that the release ap­plication was decided within a period of two months from the date of filing of release application without giving any opportunity to the petitioner to contest the case or file any evidence disputing the allegations of plaint. The respon­dent moved execution in Execution Case No. 26 of 2004. Meanwhile, a recall ap­plication was moved at the instance of tenant for recalling the ex parte order dated 31.5.2004. This recall application was moved on 1.10.2004 which was also dismissed by the Prescribed Authority/Civil Judge (Junior Division), Varanasi vide order dated 16.1.2008. The petitioner-tenant preferred an ap­peal under Order XXXIV read with Rule 22 of U.P. Act No. 13 of 1972 (wrongly mentioned as Order XLIII, Rule 1 (d) C.P.C.). The said application was dismissed vide order dated 13.8.2008. Both the orders have been challenged in the instant writ petition.;