- (1.) A. K. Yog, J. The dispute relates to Shop No. 2, Bazar Kalan, Rampur, owned by Masjid Gulzar Khanam. Hari Om Agar wal (petitioner) claims that he was doing partnership business along with another person namely, Prakash Chand Jain in the said shop ever since 1970. According to him the partnership was dissolved and petitioner came in exclusive possession of the said shop (called shop in question) and was paying rent though receipt were issued in the name of Prakash Chand Jain by the landlord.
(2.) IN the year 1979 Abdul Raoof; respondent No. 3 appears to have initiated proceedings for allotment under the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, U. P. Act No. 13 of 1972 (for short called the Act) and as a consequence thereof the shop, in ques tion was declared vacant on 6-12-1979 and thereafter- allotment order was issued in favour or respondent No. 3 in respect of the shop in question. The police was directed to get the possession delivered to respondent No. 3 and on 5- 2-1980 petitioner himself filed objection against action of police directing for initiation action to get shop vacated from petitioner for being delivered to respondent No. 3 (Abdul Raoof ). The petitioner, however, filed an application For review in order to seek cancellation of allotment order dated 31-12-1979 obtained by Abdul Raoof in his favour with respect to the shop in ques tion. True copy of the memorandum or said application for review has been filed as Annexure-4 to the petition. Hari Om Agarwal. , petitioner, occupant of the shop in question prayed that allotment order in favour of Abdul Raoof dated 31-12-1979 be cancelled and his possession of the shop in question be regularized. Rent Control and Eviction Officer, respondent No. 2 entertained the said application under Section 16 (presumable under Section 16 (5) of the Act) and allowed the said application declaring that possession of said Hari Om Agarwal (petitioner) not authorized, he was entitled to continue in possession of the shop in question and that the order declaring the shop vacant lead ing to allotment orders in favour of Abdul Raoof (dated 6-12-1979 and 31-12-1979) were revoked/since this Court noticed certain typographical error in the copy of the said order dated 23-3-1980 (Annexure-5 to the petition), Counsel for the petitioner was directed to produce cer tified copy of the judgment and also file a photostat copy of the said certified copy of the judgment for being taken on record. The Court has perused the certified copy of the said judgment and photostat copy of the certified judgment has also been taken on record. Feeling aggrieved from the above order dated 23-3-1980 (Annexure-5) Abdul Raoof filed Revision No. 28of 1980, which was allowed by II Additional Dis trict Judge, Rampur vide judgment and order dated 27th May, 1981 (Annexure-3 of the petition ). The Learned Additional District Judge entertained said revision without adverting to the fact that no such revision was maintainable under law. Even if none of the parties raised objection on this score, it was a statutory obligation of the said Court to advert to the- said fact. The order of remand became final as the concerned parties acquiesced to the juris diction of the said Court. Learned Counsel for the parties admitted that order of remand was not challenged further before higher Court.
(3.) THE Revisional Court, however, observed that the contention of the learned Counsel arguing on behalf of Hari Om Agarwal was not sustainable in law on the question of presumption of 'consent' on the part of landlord. THE Revisional Court, however, erred in referring to ir relevant extraneous consideration like passing subsequent allotment order which, ad no nexus with the question relating to the validity of the judgment challenged before him. THE Revisional Court, how Ever, did not refer to the date of sub sequent allotment order and appears to have misread the order of the Rent Control and Eviction Officer dated 23-3-1980 (Annexure-5) inasmuch as it treated it as an order of allotment in favour of Hari Om Agarwal. The Revisional Court, howEver, while allowing said Revision No. 28 of 1980, passed following order of remand: "the Revision is hereby allowed. The Judgment and order dated 28-3-1980 passed by the Rent Control and Eviction Officer, Ram-pur, are hereby set aside. The case is remanded back for trial afresh in accordance with law and observations made above. Parties are appeared 27-7-1980. ";