Judgment

UNTAWALIA, J.:- There is building bearing No. 24/ 6. Tulsa Kothi, situated at the Mall in the City of Kanpur. The appellant in this appeal filed by certificate of the Allahabad High Court is the owner of the said building. He lives in the upper floor of the building with his son and other members of the family. There are two shops in the ground floor in which tenants had been inducted. One of the shops has come in possession of Raghunath Prasad Mehrotra, respondent No. 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. The other shop was in the tenancy of Bata Shoe 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. He, therefore, filed an application on 7-11-1961 before the Rent Control and Eviction Officer (for brevity, Rent Controller) with a copy to the District Magistrate, Kanpur under Rule 6 of the Control of Rent and Eviction Rules, 1949 framed under Section17 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 2-5-1962, respondent No. 3 made an application under Section 7(2) of the Act for allotment of the accommodation to him. There were four more applicants under Section 7(2). The shop was actually vacated by Bata Shoe Company on 15-8-1962. On 16-8-l962 intimation was given by the appellant to the Rent Controller about the vacancy of the shop in accordance with Section 7(1). It may be stated here that the Additional District Magistrate, respondent No. I as also the Rent Controller, respondent No. 2 had been authorised by the District Magistrate of Kanpur to exercise powers under the Act. On 18-8-1962 the Rent Controller heard the matters and fixed 27-8-l962 for orders. Due to some reasons 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 No. 3. In due course, the District Magistrate transferred the proceedings to the Additional District Magistrate, respondent No. 1. After hearing all the parties concerned he made an order on 17-9-1962 refusing to release the shop to the appellant and directed its allotment to respondent No. 3. Thereupon a formal order of allotment allotting the shop accommodation to respondent No. 3 was issued by the Rent Controller, respondent No. 2 on 18-9-1962.

2. It appears that the appellant had in the meantime occupied the shop when it was vacated by Bata Shoe Company. Respondent No. 3, therefore, filed an application under Section 7 A of the Act on 2-11-1962, which was allowed by the Rent Controller on 15-11-1962. The order was ex parte in absence of the appellant as he is said to have not responded to the notice issued and alleged to have been served on him under Section 7-A(1) of the Act. The shop was got vacated and actual possession delivered to respondent No. 3 with the help of the Police force on 16-11-l962 in accordance with Section 7-A(3) of the Act.

3. Before the filing of the application by the third respondent on 2-11-1962 under Section 7-A of the Act, the appellant had filed on 22-9-1962 Suit No. 132/1962 in the Court of First Civil Judge at Kanpur challenging the allotment order of the Additional District Magistrate and the Rent Controller impleading the third respondent as the sole defendant in the suit. A decree for interim injunction was granted. The suit ended in compromise on 11-10-1962. The terms of the compromise will have to be considered at the appropriate place in this judgment. It may also be noted here that Kanahyalal Mehrotra, brother of the third respondent, filed another suit to challenge the compromise decree date