Hon’ble Ajit Kumar, J.—This second appeal is directed against the judgment and decree passed by 2nd Additional District Judge, Mathura in Civil Appeal No. 16 of 1978 and the 4th Additional Munsif,Mathura in O.S. No. 416 of 1973. The appeal was admitted by this Court on 8.5 1979 on following substantial questions of law, which read as under:

“1. Whether the order date4d 27.11.1972 passed by Rent Control and Eviction Officer, Mathura declaring the shop as vacant under Section 12 of the Uttar Pradesh Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 could be challenged in the Civil Court in view of Section 37(1) of the Uttar Pradesh Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 ?

2. Whether the Civil Court has got jurisdiction to set aside the findings of facts recorded by the Rent Control and Eviction Officer declaring the vacancy of the shop in dispute under Section 12 of the Uttar Pradesh Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972.

3. Whether the plaintiff’s suit could be decreed without referring and considering the documents and evidence adduced by the defendant ?”

2. Lower Court record has been received and with the consent of the parties, appeal is being finally heard and decided.

3. The plaintiff instituted a suit against the order passed by Rent Control and Eviction Officer, Mathura declaring vacancy of shop in question exercising power under Section 9 of the Uttar Pradesh Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972. (hereinafter referred to as “Act 1972”). Challenge to the vacancy order is that shop in question was not vacant on the date of order passed by Rent Control and Eviction Officer, Mathura. Shop was being occupied by one Sriniwas and that he had never sublet the shop to Chhote Lal and, therefore, finding given by the Rent Control Authority to the effect that Sriniwas was no more tenant and the shop was vacant, was incorrect. Further plea was taken that order passed by Rent Control and Eviction Officer was without jurisdiction and illegal and hence suit against the order declaring vacancy dated 27.11.1972 was fully maintainable.

4. The defendant on the other hand contested the suit on the ground that there was sufficient evidence on record to demonstrate that Sriniwas was no more tenant and he illegally sublet shop to Chhote Lal and it is Chhote Lal who had not only contested the suit but had also questioned the order declaring vacancy by filing revision.

5. The trial Court framed number of issues, in which issue No. 1 was with regard to the jurisdiction and issue No. 2 was as to whether Chhote Lal who was employee of defendant in suit was subletee. After examining the records and statements made before the trial Court, the trial Court concluded that shop was not vacant and that Chhote Lal was not sublatee nor Shikmi and so the Rent Control and Eviction Officer, Mathura had no jurisdiction to declare the shop as vacant and hence the order passed by the Rent Control and Eviction Officer was liable to held illegal and deserved to be cancelled.

6. The appeal was filed by defendant/appellant taking the plea of Section 37(1) of Act No. 13 of 1972 creating a bar to civil suit questioning the order of vacancy passed by Rent Control and eviction Officer under Section 12 of the said Act. Learned IInd Additional District Judge, Mathura while considering the merit of the case on the question of findings recorded by the trial Court challenged in appeal confirmed the findings of the trial Court. However, he further proceeded to deal with question of bar raised by appellant in view of Section 37(1) of the Act, 13 of 1972 and held that this question having not been taken and argued before the trial Court, it was not open for the appellant to raise this question at this stage of appeal. It was however, further observed that since order passed by the Rent Control and Eviction Officer, Mathura was without jurisdiction sub-section 1 of