An authority's refusal to consider the merits of a case and exercise its jurisdiction, merely because a civil suit has been instituted, amounts to a failure to discharge its legal duty and can be challenged through a writ of certiorari.

( 1 ) THIS is a reference by one of us of a writ petition under Article 227 of the Constitution.

( 2 ) THE facts in brief are that Kallu Mal and three others are tenants of a shop situated in Bazar husainganj, Lucknow, since 1910. In June 1953 opposite-party No. 1 who is the owner of the shop made an application to the Rent Control and Eviction Officer, Lucknow for permission under Section 3 of the Rent Control and Eviction Act to file a suit for ejectment. That application was rejected. The) second application made on 9-6-1956 was also rejected. The opposite-party no. 1, however, persisted and filed a fresh application on 4-9-1956. This application was allowed by the Rent Control and Eviction Officer by his order dated 11-12-1956. He allowed the petitioners one months time to vacate half the portion of the shop in their pos-session. If they did so there was to be no permission for ejectment. If, on the other hand, they failed to vacate half portion of the shop the opposite-party No. 1 was to be entitled to the permission prayed for by him. Against this order a revision was preferred before the commissioner Lucknow on 11-1-1957. This was disposed of by the learned Additional Commissioner by his order dated 22-3-1957. The order of the Rent Control and Eviction Officer was affirmed. Then on 23-3-57 an application was presented before the Rent Control and Eviction Officer, by the applicants agreeing to vacate half portion of the shop and asking for a clarification as to which portion was to be vacated. Thereupon the Rent Control and Eviction Officer by his order dated 17-5-57 accorded permission to the opposite-party No. 1 to take proceedings for ejectment in the Civil Courts. Aggrieved by tins order the present applicants filed a revision application before the commissioner Lucknow on 17-6-1957. This revision application came up for decision on 19-7-1957 and by his order, a copy of which is annexure 5 with the petition, the learned Addl. Commissioner holding that the revision application had become infructuous due to the institution of the Civil suit for eviction, dismissed the revision application. It is against that order that the present applicants have come up in this writ petition. We have heard learned counsel for the parties.

( 3 ) THE only contention before us is that the learned Add. , Commissioner did not exercise the jurisdiction vested in him by law and that, therefore, the order dated 4-10-1957 should be quashed, with the result that the revision application would be restored to its original number and be decided in accordance with the law.

( 4 ) THERE are several rulings of this Court bearing on this point. The first is Wazir Singh v. Sm. Rakkba Devi 1955 All LJ 260 and the second is Jagdish Prasad v. State of Uttar Pradesh, 1955 all LJ 846. The latter is a single Judge decision while the former is a Division Bench case. Another case to which our attention has been drawn is Dr. Bishambhar Nath v. Baldeo Prasad, 1957 All LJ 704. The last case is also a Division Bench decision and was referred to in Dr. S. L. Khoparji v. The State Govt. of U. P. 1953 All LJ 724.

( 5 ) AS pointed out in the last ruling the cases are distinguishable. Where the authority concerned has exercised its jurisdiction and in view of the fact that a Civil suit has been instituted by the party to whom permission was granted, it decides not to interfere with the exercise of the discretion by the subordinate authority, it would not be a case of refusal to exercise jurisdiction. Such a case was considered in 1955 All LJ 260 (supra ). In 1958 All LJ 724 (supra) the decision was that as the authority had refused to exercise its jurisdiction merely on the ground that a Civil suit had been instituted a writ will issue.

( 6 ) IN the present case, we are satisfied that it is quite clear from the order of the learned additional Commissioner dated 7-10-1957 that he refused to consider the case on merits. Had he exercised his jurisdiction an