K.C Agrawal, J.:— This writ petition is directed against an order of III Additional District Judge, Gorakhpur, dated January 22, 1979.
2. Smt. Sukhdei, the petitioner, was living as a tenant in the premises indispute. On 29th May, 1976, one Mohan Lal Gupta applied for allotment of this premises on the ground that Smt. Sukhdei sub-let the same to one Hari Lal. On June 1, 1976 an objection was filed by Smt. Sukhdei stating that she was in possession of the premises and had not let out the same. On 15-6-76, another application for allotment was filed by Nand Kishore, respondent no. 3. The application for allotment had been filed by him on the same ground on which Mohan Lal preferred his application for the allotment. A report was called for by the Inspector, who submitted the same on 7th August, 1976. Therefore, the case was taken up by the Rent Control and Eviction Officer on 23rd November, 1976. On 23rd November, 1976, the Rent Control and Eviction Officer made an order for the issue of notice of Smt. Sukhdei, the petitioner and two others. The case was, thereafter, taken on the 18th January, 1977. On that date, the Rent Control and Eviction Officer found that the notice had already been served on the owner, but with regard to Smt. Sukhdei, he found that since she had not been present, the case was ordered to proceed ex parte against her. There is nothing in this order to indicate that any notice had been served on her. On 18th January, 1977 itself the Rent Control and Eviction Officer notified the vacancy and, thereafter, allotted the premises to Nand Kishore, respondent no. 3 on 13-2-77. This was allowed by an order issued in Form O. Respondent no. 3, however, could not succeed in obtaining possession. Hence, he filed an application for police help. In pursuance to the said application, another order was issued in Form D. The order issued in Form D entitled a person to take the police help and to obtain possession of the premises.
3. On the aforesaid order Form being issued, the petitioner preferred a revision under Section 18 of U.P Act No. 13 of 1972 before the District Judge. The Revision was transferred to the Additional District Judge which was dismissed on 22.1.79 Against the dismissal of the revision the present writ has been filed.
4. Counsel appearing for the petitioner urged that as the petitioner did not have any notice of the proceedings of allotment, the allotment order dated 15-2-77 was invalid and was liable to be quashed. Counsel further contended that since the allotment order was itself invalid, the consequential direction Issued in Forms C and D entitling respondents no. 3 to take possession should also fall to the ground.
5. The argument raised by the learned counsel requires enquiry to be made as to whether the petitioner had been served with the notice of allotment order. I have already said that to the application moved by Mohan Lal for allotment on 1-6-76, an objection was filed. The report was submitted on 15-6-76. On the submission of the report, the Rent Control and Eviction Officer took up the proceedings for notifying the vacancy. On 23-11-76, he directed office to issue notice of the proceedings to Sukhdei and others. The notice was taken to her. It appears from the report of the process server as well as from paragraph 24 of the counter affidavit that since the petitioner Sukhdei was not found in the disputed house, the notice was returned unserved with the endorsement that she had not been found living in the said house. Being satisfied about the service of the notice, the Rent Control and Eviction Officer proceeded to decide the case on 18-1-77. He found that the premises was vacant and he thus, made an order of declaring the vacancy on that date. This was followed by an order of allotment made in favour of respondent no. 8. It is therefore, not correct to say that the petitioner had no notice of the allotment proceedings. The Rent Control and Eviction Officer could only direct the office to send the notice to the petitioner at the address given by her. If she was not found at the address, the petitioner could not complain that the notice of proceedings was not served.
6. Counsel for the petitioner urged that the report of the process server was fictitious and had been obtained by respondent no. 3 with his collusion. It is not possible to accept this argument in the present proceedings. Apart from the fact that there is no satisfactory evidence before me that could convince me that the report had been fictitiously obtained, by. Its very nature, this Court is not in a position to investigate into these facts and to record a concluded finding. The petitioner had a remedy of filing review application under Section 16(5) of U.P Act No. 13 of 1972 for recalling the allotment order. Through this application, the petitioner could have alleged that the allotment order had been fraudulently obtained. As the petitioner did not avail the remedy provided to her under Section 16(5), she cannot be heard complaining against the allotment proceedings in the present proceedings under Article 226 of the Constitution. It will now be open to the petitioner, to move an application under Section 16(5). The observations made in this judgment should not be taken to have conclusively decided the controversy. I have pointed out my difficulty of not entering into this question on account of the procedure which is generally applied to writ petitions filed under Article 226 of the Constitution. If the petitioner is able to satisfy that the notice was not served on her and that the same had been fictitiously obtained, it will be open to the Rent Control and Eviction Officer to pass such suitable order as he may be advised to do so.
7. The next submission made by the learned counsel was that the Additional District Judge committed an error in refusing to examine the merits of the points raised in the revision on erroneous ground that since the petitioner did not challenge the allotment order, the same could not be done. Admittedly, the petitioner had not filed any revision against the allotment order. The revision had been preferred against Form D which had been issued to Hari Lal. In fact, as the said order was not issued to the petitioner, she could not have filed the revision against the same. The Additional District Judge, therefore, right and justified in refusing to examine the merits of the various contentions raised in the revision.
8. For these reasons, the writ petition fails and is dismissed. In the circumstances, the parties shall bear their own costs.