ORDER A.N. Varma, J. - This writ petition is directed against an ex parte order passed by the learned 6th Additional District Judge, Allahabad, allowing a Rent Control Appeal No. 385 of 1980 filed by Amar Nath Mehrotra, respondent No. 5, herein and releasing the accommodation in dispute under S. 21(1 )(a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. 2. These are the facts. Amar Nath Mehrotra filed the aforesaid application on 7-6-1977 against the petitioner for an order of eviction of the latter from the accommodation in dispute, namely, 963, Malviya Nagar, Allahabad which consists of some accommodation on the ground floor, some on the first floor and some on the second floor. It was alleged that the petitioner had purchased that accommodation on 7-6-1976 for his own residence as he was living along with his family under great hardship in a tenanted accommodation in House No. 678, Malviya Nagar, Allahabad. 3. The application was contested by the petitioner, who is the tenant of the aforesaid accommodation. The petitioner disputed the claim of the landlord that he needed the accommodation bona fide. The Prescribed Authority allowed the application of the landlord only in regard to the accommodation on the first and second floor of the building under tenancy, while leaving the ground floor portion with the tenant. Both the parties seemed to have been dissatisfied with that order which they challenged by way of appeals. The landlord's appeal was numbered as 395 of 1980 while the tenant's appeal was numbered as 375 of 1980. I am concerned herewith the disposal of the landlord's appeal. 4. The landlord's Appeal No. 395 of 1980 was filed on 22-9-1980. After being registered, notices were directed to be issued on 27-9-1980, fixing 10-11-1980 for the hearing of the appeal. On 10-11-1980 the court found that the summons issued to the tenant had not been received after service. Consequently fresh notices were directed to be issued to the tenant returnable on 3-12- 1980 by registered post. The appellant was directed to take steps in that behalf within three days. The notices were actually sent on 18-11-1980. On 3-12-1980 again it was found that the registered notices said to have been issued to the tenant had not been received back after service. The appellant was directed to take steps in that behalf within three days. The notices were actually sent on 18-11-1980. On 3-12-1980 again it was found that the registered notices said to have been issued to the tenant had not been received back after service. The court, however, presumed the services to be sufficient and directed that the appeal be put up for argument on 1-1-1981. On 1-1- 1981 court heard the argument of the appellant's counsel. The respondent (petitioner herein) was absent. After the ex-parte argument the court reserved the judgment for delivery on 5-1-1981. On 5-1-1981 the court passed the impugned order allowing the landlord's appeal. The court observed in its judgment that as there was no cross appeal by the tenant - a premise which was entirely incorrect as the tenant had filed an appeal of which the landlord had full notice by 5-1-1981 and as the various portions of the building under tenancy were such that without the ground floor also being released in favour of the landlord he would not be able effectively to use the accommodation in dispute, the ground floor ought also to be released in favour of the landlord and he passed an order to that effect. 5. The petitioner filed this petition on 28-9-1981 on the assertion that he had no notice or intimation of the landlord's appeal which was disposed of ex parte. He came to know of the impugned order only when this fact was disclosed in the tenant's appeal No. 375 of 1980 in Sept., 1981. He, therefore, immediately rushed to this Court. 6. The landlord has contested the petition on a variety of grounds. It is alleged that the tenant had been evading service of notice issued on his appeal. He was personally informed of the appeal by the landlord. In any case in a counter-affidavit filed on 3rd July, 1981, in tenant's appeal in the court below, the landlord had specifically mentioned the fact that his appeal had already been allowed on 5-1-1981. The petition is thus highly belated and was liable to be dismissed on the ground of laches. The impugned order was also sought to be supported on merits. 7. The petition is thus highly belated and was liable to be dismissed on the ground of laches. The impugned order was also sought to be supported on merits. 7. The principal point raised in support of this petition was that no notice was served on the petitioner as required by law and that the court below has committed a serious error of law in presuming that the petitioner had been duly served, and on the basis of such assumption, in disposing of the appeal ex parte. 8. Having heard the learned counsel for the parties and given the matter a careful consideration, I am clearly of the view that the petitioner's contention is well founded. Under R. 28 of the Rules framed under the aforesaid Act the mode of service of notice issued by various authorities under the Act has been specifically laid down. R. 28 says - "28. Service of notice (Section 34 (8)) - (1) A notice issued by the District Magistrate, the Prescribed Authority or the Appellate Authority under the provisions of the Act shall be served on the person concerned - (a) by giving or tendering it to such person, or his counsel; or (b) by giving or tendering it to any adult member of his family, or (c) If no such person is found, by leaving it at his last known place of abode or business or in the case of an appeal at his address as given under R. 6; or (d) If none of the means aforesaid is available, by affixing it on some conspicuous part of his last known place of abode or business or in the case of an appeal at his address as given under R. 6. (2) If a party files a duly stamped and addressed envelope for service of any notice, then it shall be served by registered post. (3) In the case of an appeal or revision, unless the appellant has taken action under sub-rule (2), the Appellate Authority shall send the notices to the District Magistrate or the Prescribed Authority, as the case may be, for having service effected." 9. S. 34 (1) of the Act makes the provisions of the Code of Civil Procedure applicable in respect of certain specified matters enumerated therein. Service of notice is not among the subjects in regard to which Civil P. C. has been made applicable. S. 34 (1) of the Act makes the provisions of the Code of Civil Procedure applicable in respect of certain specified matters enumerated therein. Service of notice is not among the subjects in regard to which Civil P. C. has been made applicable. As mentioned above under the Act there is a specific provision for service of notice in the shape of R. 28 quoted above. Again R. 22 of the aforesaid Rules vests in the authorities under the Act the same powers as are vested in the civil Court under the Civil P. C. when trying a suit in respect of certain specified matters which are enumerated in clauses (a) to (f). Significantly service of notice is not among the matters in- regard to which the authorities under the Act may exercise the same powers as a civil Court under the Civil P. C. 10. It would thus be apparent that the appellate Court did not have those powers which are available to a civil Court under the Civil P. C. such as those provided in O. V, VII and VIII. The proviso to R. 19-A of O. 5 of the Civil P. C. specifically lays down that where summons was properly addressed, pre-paid and duly sent by registered post, acknowledgement due, the declaration referred to in sub-r. (1) shall be made notwithstanding the fact that the acknowledgement having been lost or mislaid, or for any other reason has not been received by Court within 30 days from the date of the issue of the summons. There is a similar provision added by the Allahabad High Court as sub-r. (3) in 0. V R. 9 empowering the Court to deem the service of summons sufficient under the circumstances mentioned above. In our own Rules of the Court there is a corresponding provision in the shape of Chapter VIII, R. 12. It is pertinent to note here that the authorities under the aforesaid Act have not been vested with any such powers to presume the service of notice even though the same may not have been received back. The absence of specific powers in the authorities under the Act such as those which have been conferred upon a Civil Court under the Civil P. C. cannot therefore be overlooked. The omission seems deliberate and significant. 11. The absence of specific powers in the authorities under the Act such as those which have been conferred upon a Civil Court under the Civil P. C. cannot therefore be overlooked. The omission seems deliberate and significant. 11. It seems to me that having regard to the seriousness of the repercussions which are likely to be caused to the parties in consequence of ex parte orders passed under the Act in question, the Legislature seems to have deliberately omitted to authorise the authorities under the Act to treat the service of notice sufficient where summons or notice have not been received back with the endorsements thereon indicating whether the notice in question was in the fact tendered to the party concerned or to any adult member of the family of that party or whether affixation was done by the process-server at the place of abode or business of the party concerned as contemplated under R. 28. 12. I now turn to the facts of the case. In the order under challenge the learned Additional District Judge has observed thus : - "Notice of appeal was given to the respondent through Court but it was not received back. Then another notice was sent to him through a registered cover dated 18-11-80. When the registered cover was pot received back sufficiency of service was presumed. The respondent did not turn up." The same thing is reflected by the order sheet of the appeal, a true copy of which has been annexed to the rejoinder affidavit of the petitioner as Annexure 2. From an examination of the order sheet it is obvious that neither the original summons nor the notices sent to the petitioner had been received back after service. The Court therefore did not have any material on the basis of which it could satisfy itself whether the notices said to have been issued to the petitioner had been tendered to him in the manner laid down in R. 28. It went entirely by presumption of due service simply on the ground that the notices had not been received back. This was not permissible as already noticed. The court did not have any such powers as have been conferred upon a Civil Court. It was therefore in error in presuming the service to be sufficient, and on the basis of such deemed service, in disposing of the appeal ex parte. 13. This was not permissible as already noticed. The court did not have any such powers as have been conferred upon a Civil Court. It was therefore in error in presuming the service to be sufficient, and on the basis of such deemed service, in disposing of the appeal ex parte. 13. The learned counsel for the landlord placed strong reliance on R. 6. R. 6, however, deals only with the subject of address for service of notice. It says that every applicant or opposite party shall file before the District Magistrate or the Prescribed Authority his address for service as prescribed under R. 19 of O. VII and R. 11 of 0. VIII of the First Schedule to the Civil P. C. It does not lay down the mode of service. It is hence not of much relevance. 14. The learned counsel for the landlord vehemently contended relying on certain allegations made in the counter affidavit filed in this Court on behalf of the landlord to the effect that the tenant had in any case been personally informed of the landlord's appeal by the landlord himself on the night of Deepawali of 1980. These allegations have, however, been denied by the tenant in his rejoinder-affidavit. It is not possible to give any concluded finding on this plea of the landlord. It, however, seems most unlikely that the tenant would not put in appearance in the landlord's appeal and allow the same to be decided ex parte, even after coming to know of the same. I cannot therefore refuse relief to the petitioner on d and unsubstantiated allegation of the landlord that the petitioner had been orally informed of the pendency of the landlord's appeal by the landlord himself. 15. On the aforesaid finding recorded by me this Court holds that the Court below was not justified in disposing of the appeal ex parte on the basis of a presumed service of notice on the petitioner, the petitioner has clearly become entitled to the relief claimed in this petition. 16. The learned counsel for the landlord, however, contended that this Court itself should examine the case on merits and urged that on merits the impugned order is entirely unexceptionable. I am unable to accept this contention. This Court exercising its powers under Article 226 of the Constitution cannot substitute its own judgment on merits for that of the Court below. The learned counsel for the landlord, however, contended that this Court itself should examine the case on merits and urged that on merits the impugned order is entirely unexceptionable. I am unable to accept this contention. This Court exercising its powers under Article 226 of the Constitution cannot substitute its own judgment on merits for that of the Court below. Further, in the course suggested by the landlord's counsel the tenant shall be deprived of a valuable right of getting his case argued both on questions of fact as well as law which would be possible only if the matter is heard by the Court below which shall have the advantage of having the entire record of the case before it. 17. In passing I may mention that the conclusions of the Court below are founded on the erroneous premise that there was no cross appeal by the tenant. He therefore treated the release of the first and second floor accommodation as a 'fait accompli'. That premise was wrong. However, as the tenant's appeal has since been dismissed and the order of dismissal affirmed by this Court in a writ petition, this error in the judgment of the appellate Court may not now have that importance which it would have had if the matter relating to the appeal of the tenant had remained sub judice. In any case in the entire circumstances I am of the opinion that the better course would be to send back the case to the Court below for the disposal of the appeal of the landlord afresh after hearing both sides. 18. There remains then to be considered a preliminary objection raised on behalf of the landlord. It was urged that the petitioner is guilty of laches. The impugned order was passed on 5th Jan., 1981 whereas the petition was not filed until 28-9-1981. It was submitted that the petition should be dismissed on this ground alone. I am unable to uphold the preliminary objection. In the writ petition it is asserted that the petitioner was not served with any notice in the landlord's appeal. He remained ignorant about it until in the petitioner's own appeal it was disclosed by the landlord in Sept., 1981 that his appeal had already been allowed in Jan., 1981. This assertion is controverted by the landlord in his counter affidavit. He remained ignorant about it until in the petitioner's own appeal it was disclosed by the landlord in Sept., 1981 that his appeal had already been allowed in Jan., 1981. This assertion is controverted by the landlord in his counter affidavit. The petitioner in his rejoinder-affidavit has reiterated the facts asserted in the writ petition. As already observed, it is not possible to hold on the material existing on the record of the present petition that the petitioner was aware of the landlord's appeal earlier than Sept., 1981. Indeed having regard to the manner in which the notices were sought to be served on the petitioner in the landlord's appeal, it seems unlikely that the petitioner had come to know of the landlord's appeal before Sept. 1981. In this view, it cannot be said that the petitioner has been guilty of laches. The learned counsel for the landlord, however, laid considerable emphasis on a counter affidavit filed on 3-7-1981 in the tenant's appeal on behalf of the landlord in which it is alleged that the landlord had stated that his appeal had been allowed on 5-1-1981. Relying on this, it was argued that the petitioner had come to know of the impugned order in any case by 3rd July, 1981. It has been asserted by the petitioner in the rejoinder-affidavit that in the copy of the counter-affidavit served on his counsel these facts were not mentioned and that whereas the rest of the original counter affidavit is typed, these words are in the handwriting of somebody. This indicates, it is stated, that these words were subsequently added. It is unnecessary to decide this controversy. For, even, assuming that the petitioner had come to know of the landlord's appeal indirectly in July, 1981 the petition cannot be said to be so highly belated as to merit dismissal on grounds of delay only. 19. In the result, the writ petition succeeds and is allowed. The impugned order passed by the learned 6th Additional District Judge, Allahabad dated 5-1-1981 is quashed. The said Court is directed to dispose of the Rent Control Appeal No. 395 of 1981 afresh according to law. The learned Additional District Judge shall endeavour to dispose of the appeal latest within two months from the date on which either party produces before him a certified copy of this order. The parties shall, however, bear their own costs.