JUDGMENT

Gyanendra Kumar, J. - This is an appeal by the defendant, the Central Bank of India, Lucknow, which is a tenant of the major portion of the house in question. Roorh Mal, who was the owner of the house and was the predecessor-in-interest of the present respondents, applied for permission under Section 3 of the U.P. Rent Control and Eviction Act to eject the appellant on the ground that he was heavily indebted to the tune of over Rs. 30,000/- and so he wanted to clear off his debts by disposing of the house in suit. It could not fetch proper price without his being able to deliver vacant possession to the purchaser. The Rent Controller and Eviction Officer, however, dismissed the application of the landlord by his order dated 22.6.1965. Thereupon the landlord, Roorh Mal, since deceased, filed a revision before the Commissioner of Lucknow Division, who allowed the same and granted the requisite permission by his judgment and order dated 1st February, 1966 to file suit for ejectment of the defendant bank. It appears that during the pendency of the suit, Roorh Mal died with the result that the present respondents were brought on record as his heirs and legal representatives.

2. The trial Court decreed the suit for ejectment of the defendant bank and for recovery of Rs. 6.25 towards the arrears of rent. Aggrieved, the defendant Bank went up in appeal which was also dismissed by the Additional District Judge by his judgment and decree dated 24th January, 1970 hence this second appeal by the defendant bank.

3. The main argument on behalf of the appellant bank is that the permission granted by the Commissioner to the landlord for filing a suit for ejectment of the bank from the premises in suit was illegal and without jurisdiction. It is true that this plea was raised before the trial Court but it does not appear to have been pressed before the lower appellate Court, as there is no mention of it in the body of the judgment. Nevertheless, the plea of jurisdiction can be taken even for the first time in a second appeal.

4. Mr. Rehman, appearing for the appellant bank, has drawn my attention to the judgment and order of the Commissioner whereby he had granted permission to the landlord to file a suit for ejectment of the defendant Bank. His main grievance is that the learned Commissioner had acted beyond his jurisdiction and, at any rate, illegally, in basing his judgment on the G.O. dated 20th April, 1965 issued by the Government, suggesting that if a landlord is heavily indebted near about the market value of his house then on his request for the grant of permission to file a suit for ejectment, it should be allowed, so that the debt may be paid off by the sale of the vacant house. It is true that the G.O. in question does not lay down any law, nor is it a binding force on the Rent Control and Eviction Officer or the Commissioner, but it certainly furnishes a guide to the Rent Control and Eviction authorities for granting permission to a landlord for filing a civil suit for the eviction of his tenant, so that the house may be sold away to clear off his debt.

5. It is noteworthy that in Section 3 of the Rent Control and Eviction Act no standard or guideline has been prescribed as to under what circumstances the District Magistrate would grant permission to the landlord to file a suit for eviction of his tenant from the accommodation in question. In other words, the discretion of the District Magistrate, the Commissioner and the State Government is unfettered and requisite permission can be granted in their judicial discretion.

6. The fact that the landlord was heavily indebted to the tune of over Rs. 30,000/- was not specifically denied by the defendant bank, apart from saying that it was not aware about the alleged indebtedness of the landlord. Ganesh Kumar plaintiff respondent No. 1, who was present in Court on 24.3.1971, was examined and he stated on oath that he and the other members of his family who are now plaintiff respon