S.D Agarwala, J.:— This is a petition under Article 226 of the Constitution of India. The acts giving rise to the present petition are as under.
2. The petitioner is a tenant of a non residential accommodation consisting of a shop in the accommodation No. 44/41, Crosthwatie Road, Allahabad. Respondent Nos 1-A to 16 are the landlords of the said premises. The father of the respondent-landlords filed an application under Section 3 of the U.P (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter to as the old Act) for permission to evict the petitioner from the disputed premises. The Rent Control and Eviction Officer allowed the application on 9th January, 1967 and granted permission to the landlord to file a suit against the petitioner. The petitioner tenant filed a revision before the Commissioner under Section 3(2) of the old Act This revision was also dismissed by the Commissioner by his order dated 8th October, 1968. In 1968, immediately after the Commissioner dismissed the revision, Suit No. 851 of 1968 was filed by the landlord against the petitioner for eviction from the premises in dispute. Meanwhile the tenant-petitioner moved the State Government under Section 7-F of the old Act. The State Government rejected the petition under Section 7-F of the old Act on 22nd February, 1974. The suit for ejectment filed was dismissed by the trial court on 29th September, 1970. Against the judgment dated 29th September, 1970 an appeal was filed before the lower appellate court. The lower appellate court allowed the appeal and set aside the judgment of the trial court dated 29th September, 1970. The result was that the suit for ejectment was decreed. Against the judgment of the lower appellate court dated 25th September, 1971 a second appeal No. 2471 of 1971 was filed in this court. This second appeal was allowed by this court on 12th April, 1972, and the decree passed by the court below for ejectment was set aside. The second appeal was allowed by Justice K.N Srivastava (as his lordship then was) on the technical ground that the notice given under Section 106 of the Transfer of Property Act was not a validly served notice, as clear 30 days were not given for vacating the premises. It was on this sole technical ground that the High Court allowed the appeal and set aside the decree for ejectment. Immediately thereafter, on 15th July, 1972 U.P Act No. 13 of 1972 (hereinafter referred to as the new Act) came into force. This repealed the old Act. Section 43(2)(rr) of the new Act provided that where any permission referred to in section 3 of the old Act had been obtained on any grounds specified in sub-section (1) or sub-section (2) of Section 21 of the new Act, has become final, either before the commencement of this Act, or in accordance with the provisions of this sub-section, after the commencement of this Act, the landlord may apply to the Prescribed Authority for the eviction of a tenant under Section 21 of the new Act, and thereupon the Prescribed Authority shall order eviction of the tenant from the building under tenancy.
3. In view of the above provision, the landlord moved an application under Section 43(2)(rr) of the new Act before the Prescribed Authority on 3rd March, 1974. At this stage, it may be mentioned that after the State Government rejected the petitioner's representation under Section 7-F of the old Act the petitioner tiled a writ petition No. 1783 of 1974 in this Court and obtained a stay order from this Court staying further proceedings in pursuance of the application made on 3rd March, 1974 by the landlord under Section 43(2)(rr) of the new Act. The proceedings, consequently, remained stayed. The writ petition No. 1783 of 1974 was allowed on 16th January, 1975, by Justice R.L Gulati (as he then was) and the order of the State Government dated 22nd February, 1974 was quashed limply on the ground that since the suit had already been filed on the basis of the permission obtained on 9th January, 1967 confirmed by the Commissioner on 8th October, 1968, the State Government had no jurisdiction to pass any order on the application under Section 7-F of the old Act. The High Court did not hold that the permission granted to the landlord was invalid on any ground on merits. The ultimate effect of the judgment of the High Court was that the permission which had been obtained by the landlord remained a valid permission.
4. It appears that the petitioner had filed this petition simply to delay the proceedings taken by the landlord, as this Court had earlier categorically taken the view that once a suit had been filed on the basis of the permission, the State Government had no jurisdiction to pass an order on a representation under Section 7-F of the Act.
5. With the finalisation of the writ petition on 16th January, 1975, the matter was again taken up by the Prescribed Authority. The petitioner filed objections again to the continuance of the said proceedings initiated on 3rd March, 1974 under Section 43(2)(rr) of the new Act. By an order dated 3rd August, 1984, the Prescribed Authority rejected the objections filed by the petitioner and directed the application under Section 43(2)(rr) of the new Act to proceed. The petitioner, consequently, challenged this order dated 3rd August, 1984 by means of this present petition in this Court.
6. I have heard the learned Counsel for the parties.
7. Learned Counsel for the petitioner has contended that once the second appeal No. 2411 of 1971 was allowed by this Court on 12th April, 1972 the permission obtained by the landlord-respondent exhausted itself and became final and it was not open thereafter for the landlord-respondents to proceed under Section 43(2)(rr) of the new Act on the basis of the same permission.
8. In Mohammad Swalleh v. 3rd Additional District Judge, Meerut, (1988) 1 SCC 40 : AIR 1988 SC 94 : 1987 (2) ARC 513 (SC), the Hon'ble Supreme Court had an occasion to consider exactly a similar situation. In that case also, the suit, which was filed on the basis of permission had been dismissed on a technical ground. The Hon'ble Supreme Court has held that the permission granted does not exhaust itself if a suit is dismissed on a technical plea, and not on the merits of the contentions. The Hon'ble Supreme Court relied upon a decision of this Court in Pahlad Das v. Ganga Saran, AIR 1958 Alld. 774. In the case of Pahlad Das v. Ganga Saran (supra), the suit had been dismissed on the technical ground of the validity of the notice. In the circumstances, the decision of the Hon'ble Supreme Court in the case of Mohammad Swalleh v. 3rd Additional District Judge, Meerut, (supra) fully applies to the present case.
9. The appeal, which was dismissed by the High Court was clearly on a technical ground of the validity of the notice. The permission granted by the District Magistrate under Section 5 of the old Act did not exhaust itself and it remained valid. It consequently, was open to the landlord-respondents to file an application under Section 43(2)(rr) of the new Act on the basis of die said application. The application was clearly maintainable in law. The submission made by the learned Counsel for the petitioner in my opinion, consequently, is devoid of substance.
10. No other argument has been raised on behalf of the petitioner. In the result, the petition is dismissed. The interim orders dated 14th September, 1984 and 11th January, 1985 are hereby vacated. The permission to evict the tenant was taken as far back as in 1977. Twenty-one years have already elapsed. The Prescribed Authority is directed to take steps in accordance with law in pursuance of the permission granted to the landlord-respondent under the old Act without any further delay. In the circumstances of the case, the parties are directed to bear their own costs.
11. Petition dismissed.