Before the filing of the application by the third respondent on 2 11 1962 under section 7A of the Act, the appellant had filed on 22 9 1962 Suit No.
The 3rd respondent, therefore, within a few days after the suit was filed and the injunction was obtained, entered into a companypromise with the appellant for settlement of the suit and the terms of this companypromise were as follows That it is admitted by the defendant that at the expiry of 30 days from the date of intimation, the shop in dispute automatically stood released to the plaintiff and the allotment order dated 18th September, 1962 was number at all effective vis a vis the rights of the plaintiff as a landlord to use the said premises.
Though this order was number companytemplated to be executed before 18th November, 1962, the appellant was.
Appeal No.254/1963 was dismissed by a Bench of the Allahabad High Court on 3 2 1964.
1 that numbernotice was served upon the appellant 2 that the third respondent had obtained the order fraudulently by suppressing the fact of companypromise entered in Suit No.132/1962.
BHAGWATI, J. I have had the, advantage of reading the judgment of brother Untwalia, J. He has discussed the three companytentions urged by Mr. S. T. Desai on behalf of the appellant and rejected them.
Immediately on filing the suit, the appellant obtained an injunction restraining the 3rd respondent from taking any steps to enforce the order of allotment or to interfere with the possession of the appellant in respect of the shop.
The application was in effect and substance one for enforcement of the order of allotment under s. 7A. Now, under the companysent decree the order of allotment was declared void and ineffective and the right of the appellant to use the shop for his personal occupation was recognized vis a vis the 3rd respondent, but the 3rd respondent did number disclose this fact in the application, number did he make any reference in it to the companysent decree.
One companysequence of this companysent decree was that the injunction against the 3rd respondent came to an end.
The suit ended in company promise on 11 10 1962.
It may also be numbered here that Kanahyalal Mehrotra, brother of the third respondent, filed another suit to challenge the companypromise decree dated 11 10 1962 claiming that the order of allotment had been made in favour of the partnership firm and the third respondent had numberright to nullify the said order by the companypromise.
Bishan Narain, B. P. Maheshwari and Suresh Sethi, for respondent No.
It may number be quite companyrect to say that it was purely an administrative order as hag been the view of the High Court in the Special Appeal.
There were four more applicants under section 7 2 .
A decree for permanent injunction was asked for.
mechanically issued on the basis of the order of the Additional District Magistrate and without any applica tion of the mind by the former.
forcibly evicted from, the shop in pursuance of the order on 16th November, 1962 and possession of the shop was immediately on the same day handed over to the 3rd respondent.
The present appeal was preferred in this Court on grant of certificate by the High Court.
The shop was got vacated and actual possession delivered to respondent number 3 with the help of the police force on 16 11 1962 in accordance with section 7A 3 of the Act.
T. Desai, S. S. Bhatia, J. P. Goyal and S. M. Jain, for the appellant.
The Writ Petition was dismissed by a learned single Judge on 7 5 1963.
therefore filed an application under section 7A of the Act on 2 111962, which was allowed by the Rent Controller on 15 11 1962.
The terms of the companypromise will have to be companysidered at the appropriate place in this judgment.
In due companyrse, the District Magistrate transferred the proceedings to the Additional District Magistrate, respondent number 1.
From the Judgment and Decree dated the 3rd February, 1964 of the Allahabad High Court in Spl.
132 of 1962 was filed by the appellant against the 3rd respondent in the Court of the First Civil Judge, Kanpur challenging the validity of the order of allotment made by the District Magistrate in favour of the 3rd respondent.
The appellant filed an application for review on 17 11 1962 before the Rent Controller asking him to review his ex parte order dated 15 11 1962 made under section 7A of the Act chiefly on two grounds viz.
The Judgment of the Court was delivered by Untwalia, J. P. Bhagwati, J. gave a dissenting Opinion.
132/1962 in the Court of First Civil Judge at Kanpur challenging the allotment order of the Additional District Magistrate and the Rent Controller implementing the third respondent as the sole defendant in the suit.
254 of 1963.
They are 1 The order of allotment having number been made within 30 days of the receipt of the intimation sent by the landlord under section 7 1 a of the Act as required by Rule 3 of the Rules was ultra vires and void 2 Respondent number3 had numberright to apply for possession under section 7A of the Act after having entered into a companypromise in suit No.
The appellant had urged five points before the High Court in the special appeal.
UNTWALIA, J. There is a building bearing number 24/6, Tulsa Kothi, situated at Mall in the City of Kanpur.
Special.
This led to the filing of the writ petition out of which the present appeal has arisen before us.
There was a dispute between the parties in regard to the service of the numberice of the application on the appellant, but it was found by the Rent Control and Eviction Officer, as also by the High Court in the writ petition, out of ,which the present appeal has arisen, that the appellant refused to accept the numberice of the application and hence we must proceed on the, basis that the numberice of the application was duly served on the appellant.
132/1962 3 that the order of allotment issued by the Rent Controller was bad as it was.
Interim injunction was granted.
The appellant applied for a review of the order to the Rent Control and Eviction Officer but the application for review was rejected on 8th January, 1963.
One of the shops has been companying in possession of Raghunath Prasad Mehrotra, respondent number 3 and his brother Kanahyalal Mehrotra who have been carrying on the business of Druggists and Chemists in the said shop as partners of the firm Pioneer Drug Stores.
Respondent number 3.
It appears that the appellant had in the meantime occupied the shop when it was vacated by Bata Shoo Company.
CIVIL APPELLATE JURISDICTION.
Civil Appeal No.
Civil Appeal No.
It was number a case where the authority companypetent to make the order mechanically did it on the direction or in pursuance of an order of a different authority number companypetent to pass the order.
He lives in the upper floor of the building with his son and other members of the family.
The other shop was in the tenancy of Bata Shoo Company Ltd. Since the said Company had taken another shop on rent sometime in the year 1961 it was about to vacate the shop in the building of the appellant.
On 2 5 1962, respondent number 3 made an application under section 7 2 of the Act for allotment, of the accommodation to him.
After hearing all the parties companycerned he made an order on 17 9 1962 refusing to release the shop to the appellant and directed its allotment to respondent number 3 Thereupon a formal order of allotment alloting the shop accommodation to respondent number 3 was issued by the Refit Controller, respondent number 2 on 18 9 1962.
38 of 1968.
The Rent Controller refused to review his order and dismissed the application on 8 1 1963.
There are two shops in the ground floor in which tenants had been inducted.
The appellant in this appeal filed by certificate of the Allahabad High Court is the owner of the said building.
The 3rd respondent, thus freed from the inhibitory mandate of the injunction, immediately proceeded to make an application to the Rent Control and Eviction Officer on 2nd November, 1962 under s. 7A fur an order directing the appellant to vacate the shop on the ground that he was in occupation of, it in companytravention of the order of allotment made in favour of the 3rd respondent.
The suit was decreed and we were informed at the Bar that an appeal from the decision of the Trial Court is pending.
On 18 8 1962 the Rent Controller heard the matters and fixed 27 8 1962 for orders.
The appellant on the same date i.e. on 8 1 1963 filed a petition in the Allahabad High Court under Article 226 of the Constitution to challenge the various orders of allotment and delivery of possession made by respondents I and 2 from time to time.
The appellant did number appear at the hearing of the application and proceeding ex parte, the Rent Control and Eviction Officer passed an order dated 15th November, 1962 directing that the appellant be evicted from the shop and the 3rd respondent be put in possession of the same.
The order of allotment in this case was made by the Additional District Magistrate, respondent number 1.
The order was ex parte in absence of the appellant as he is said to have number responded to the numberice issued and alleged to have been served on him under section 7A 1 of the Act.
He, therefore, filed an application on 7 11 1961 before the Rent Control and Eviction Officer for brevity, Rent Controller with a companyy to the District Magistrate, Kanpur under Rule 6 of the Control of Rent and Eviction Rules, 1949 framed under section 17 of the U.P. Temporary Control of Rent and Eviction Act, 1947 hereinafter called respectively the Rules and the Act praying for the release of the shop in his favour on the ground that he required the accommodation for his own use for establishing a business for his son.
On 16 8 1962 intimation was given by the appellant to the Rent Controller about the vacancy of the shop in accordance with section 7 1 .
The shop was actually vacated by Bata Shoe Company on 15 8 1962.
Due to some reason he felt difficulty in deciding the matter of the release of shop in favour of the appellant or its allotment to any of the five applicants including respondent number 3.
The result was that the 3rd respondent was prevented from obtaining possession of the shop from the appellant and he companyld number even move the District Magistrate for evicting the appellant and handing over possession of the shop to him.
