JUDGMENT V.D. Bhargava, J. - This is a second appeal filed by one of the Defendants and arises out of a case the under Rent Control and Eviction Act. The Plaintiff Mukhtar Husain brought a suit for a declaration that he was a tenant of the two rooms situated above Sikandar Biscuits Factory Nazirabad, Lucknow. The two rooms according to the Plaintiff, were occupied by him for the purposes of him go down and his servants' quarters. The landlord of the house was Sheo Shankar Verma and these premises were taken about eight year ago on a monthly rent of Rs. 12/8/ -. Azizuddin was one of the employees of the Plaintiff. He was the manager of the shop and as such he was allowed to occupy one of these rooms. Azizuddin was dismissed in the year 1949 from the service but he continued to serve the Plaintiff as his commission agent, and, therefore, he was allowed to live in that room. The said Azizuddin again joined the service in July 1950. He left for Bareilly temporarily to fetch his family. In the meantime, the Appellant-Defendant applied to the Rent Control and Eviction Officer that these two rooms have been vacated and, therefore, the allotment should be made to him. The allotment was made in favour of the Appellant. It appears that Azizudin colluded with the Appellant and gave in-formation that he had left the promises. 2. The defence was, that the Plaintiff was not the tenant but Azizuddin, was the tenant and as he had vacated the premises, the order of the Rent Control and Eviction Officer was valid. It was contended, that the order of the Rent Control and Eviction Officer by virtue of Section 16 of U.P. Rent Control and Eviction Act could not be challenged in a Civil Court and it was further contended that if the house had been vacated by Azizddin, it would be deemed to be vacant and the Rent Control and Eviction Officer had perfect jurisdiction to allot the same. 3. So far as, the question whether Azizuddin was the tenant or the Plaintiff Mukhtar Husain was the tenant, is a question of fact and the finding of the lower appellate Court is that the Plaintiff was the tenant. He had taken it on lease from the land lord. 3. So far as, the question whether Azizuddin was the tenant or the Plaintiff Mukhtar Husain was the tenant, is a question of fact and the finding of the lower appellate Court is that the Plaintiff was the tenant. He had taken it on lease from the land lord. No evidence has been produced that he had ever left the house or that he had even the intention to leave the house. The finding of fact further is that Azizuddin was occupying this house as the servant of the Plaintiff and as such he had no right to give notice of vacation. That is a finding of fact which is binding in Second appeal. 4. On the question, whether the house had been vacated or not, reliance was placed for the applicant on Mahabir Prasad v. Kiwal krishna 1953 A.W.R. (H.C) 73. It was held that: the word "vacant" as used in the U.P. (Temporary) Control of Rent and Eviction Act (III of 1947) means that the tenant should have ceased to occupy the accommodation with the intention of not coming back to it again. If these conditions are satisfied, the house becomes "vacant" irrespective of the fact whether the tenant's liability to the landlord for payment of rent has ceased or not. 5. In this case there is no finding that the house had ever been vacated by Mukhtar Husain with the idea of never occupying it and therefore, this authority is not applicable to the facts of the present case. 6. Next it was contended that the suit was barred u/s 16 of the U.P. Rent Control and Eviction Act which reads as follows: No order made in this act by the State Government or the District Magistrate shall be called in question in any Court. 7. 6. Next it was contended that the suit was barred u/s 16 of the U.P. Rent Control and Eviction Act which reads as follows: No order made in this act by the State Government or the District Magistrate shall be called in question in any Court. 7. It is not the order which is called in question in this case but it is the jurisdiction of the Rent Control and Eviction Officer that was challenged if the house has fallen vacant or was likely to fall vacant, the Rent Control and Eviction Officer would have perfect jurisdiction to make an allotment to any person he liked, and in that event, the order of the Rent Control and Eviction Officer will not be a justiciable matter, but, if the house had not been vacated or it was not likely to fall vacant, the Rent Control and Eviction Officer would have no jurisdiction to make his order and his order would be without jurisdiction and illegal and void order and that can certainly he challenged in a Civil Court. Since according to the findings of the Court below the house had not been vacated, the Rent Control and Eviction Officer would have no jurisdiction and in the circumstances the order was without jurisdiction and has rightly been set aside by the lower appellate court. There is, therefore, no force in the appeal which is dismissed, but in the circumstances of the case, I make no order as to costs. The stay order is discharged.