( 1 ) THIS is a defendants appeal arising out of a suit for ejectment and for arrears of rent.

( 2 ) THE defendant-appellant was a tenant of a certain shop belonging to the plaintiff-respondent in urdu Bazar in the city of Gorakhpur. It was a month to month tenancy. The plaintiff-respondent applied to the Town Rationing Officer who seems to have been authorised by the District magistrate to act under the Control of Rent and Eviction Act, III [3] of 1947, for permission to sue the defendant-appellant for his ejectment from the shop. It is not clear on what ground the permission was sought. There is one application on the record dated 30-4-1948, in which the ground for ejectment mentioned that the defendant-appellant had damaged the wall of the shop. Learned counsel for the plaintiff-respondent asserts that there was another application in which he had alleged that he wanted the shop for his own business. However, that may be, the Town rationing Officer granted permission to sue the defendant, appellant for his ejectment by an order dated 8-5-1948. There is another order dated 22-5-1948, in which also the Town Rationing officer had granted the same permission. There appears to have been a further order dated 18-6-1948, in which the permission already granted was again confirmed.

( 3 ) THE plaintiff-respondent then gave notice for the ejectment of the defendant appellant and after the expiry of the time of the notice he filed a suit on 22-10-1948, for the ejectment of the defendant-appellant. This was Suit No. 760 of 1948. It appears, however, that the plaintiff-respondent accepted rent after he had given notice to the defendant-appellant and he considered that this acceptance of rent may be a bar to his success in the suit. He, therefore,, applied for the withdrawal of the suit with permission to file a fresh suit on the same cause of action. This permission was granted on 26-1-1949, and the suit was withdrawn. Then on. 31-1-1949, a fresh notice was given to the defendant-appellant asking him to vacate the shop. The defendant-appellant not having vacated the shop, the suit which has given rise to the present appeal was filed on 17-3-1949.

( 4 ) IN the plaint the grounds given in support of the plaintiffs claim entitling him to eject the defendant were that defendant I had damaged the leased premises and further that the plaintiff wanted the shop for himself and that he had obtained the permission of the Town Rationing officer for the ejectment of the defendant-appellant.

( 5 ) THE defence to the suit inter alia was that the defendant had not damaged the shop and that the permission obtained by the plaintiff was of no avail.

( 6 ) THE trial Court held that the shop had not been damaged and that the permission obtained by the plaintiff had come to an end with the withdrawal of the previous suit and could no longer be availed of in the present suit. He, therefore, dismissed the suit for ejectment but, granted a decree for arrears of rent. Against this decree the plaintiff appealed to the lower appellate Court. That court found that the permission granted was sufficient to entitle the plaintiff to eject the defendant-appellant. It did not record any finding on the question of damage alleged to have been caused to the shop. In the result the suit was decreed for ejectment as well. The defendant has now come up to this Court in Second Appeal.

( 7 ) IN this Second Appeal three points have been urged before me.

( 8 ) THE first point urged is that the permission in the case having been granted by the Town rationing Officer and not by the District Magistrate as required by Section 3 of the Control of rent and Eviction Act, III [3] of 1947, is of no use.

( 9 ) SECTION 2 (d) defines a District Magistrate as "including an officer authorised by the District magistrate to perform any of his functions under this Act. " Section 3 says :

"no suit shall, without the permission of the District Magistrate, be filed in any civil Court aga