JUDGMENT N.D. Ojha, J. - The eastern portion of premises no. 34 Nawab Yusuf Road, Allahabad, was in the tenancy of one Sardar Sampooran Singh. Certain applications were made for the allotment of the said accommodation on the ground that it had been vacated by Sardar Sampooran Singh and was available for allotment. One such application had been made by Bimal Kumar Shukla and another application was made by the petitioner himself on 3rd August, 1971. The accommodation in question was, however, by order dated 4th December, 1971, allotted in favour of Bimal Kumar Shukla. The petitioner filed a review application on 13th December, 1971, before the District Supply Officer which was dismissed on the same date. He then made a representation before the State Government under Section 7-F of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter referred to as U.P. Act 3 of 1947) on 14th December, 1971, against the order of the District Supply Officer dated 4th December, 1973, allotting the accommodation in question to Bimal Kumar Shukia. His representation was, however, rejected by the State Government on 10th January, 1972. The order dated 4th December, 1971, passed by the District Supply Officer and the order dated 10th January, 1972 passed by the State Government were challenged by the petitioner before this Court in Writ Petition Mo. 354 of 1972. The case of the petitioner was that he' was tenant of the accommodation in question even though without an order of allotment. The writ petition was, however, dismissed on 23rd May, 1974, by Hon'ble Mr. Justice M.N. Shukia. It was inter alia held by him :- "In the instant case the allegation of the landlord in his affidavit is that the petitioner had entered into possession of the accommodation in dispute by breaking open the locks of Sardar Singh, the previous tenant, about which incident a report had been lodged with the police. The allegation of the petitioner that he occupied the premises with the consent of the landlord appears to be patently false." As is apparent from paragraph 17 of the writ petition itself the petitioner preferred a special appeal before a Division Bench of this Court against the judgment of Hon'ble Mr. Justice M.N. Shukla dated 23rd May, 1974, which was dismissed in limine on 24th July, 1974. Justice M.N. Shukla dated 23rd May, 1974, which was dismissed in limine on 24th July, 1974. Thereafter by an order dated 7th November, 1974, vacancy in respect of the accommodation in question was notified by the Rent Control and Eviction Officer. The petitioner challenged the aforesaid order declaring vacancy before this Court in Writ Petition Mo. 7028 of 1974. This writ petition was dismissed by a Division Bench of this Court after hearing counsel for the parties on 17th February, 1977, on the ground that it was premature in view of the decision of the Supreme Court in M/S Trilok Singh & Co. v. District Magistrate, Lucknow ( AIR 1976 SC 1988 ). 2. Further proceedings before the Rent Control and Eviction Officer consequent upon the order dated 7th November, 1974, declaring vacancy in respect of the accommodation in question remained stayed on account of an interim order passed by this Court in Writ Petition No. 7028 of 1974. This interim order was vacated by this Court on 17th February, 1977, while dismissing the writ petition. It appears that thereafter proceedings consequent upon the declaration of vacancy as aforesaid again started before the Rent Control and Eviction Officer. In those proceedings respondent no. 3 Guru Dayal Vidyarthi asserted that he was occupying the accommodation in question as a tenant with the consent of the landlord from before the commencement of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, and, not being a person against whom a suit or proceedings for eviction was pending before any court or authority before the said amendment, was entitled to the benefit of Section 14 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as U.P. Act 13 of 1972). According to him he was entitled to have his occupation regularised under the said section. 3. It is the petitioner's own case that respondent no. 3 Guru Dayal Vidyarthi is his uncle and both of them have been residing in the accommodation in dispute. During the course of arguments the petitioner has also submitted that he constituted a joint Hindu Family with respondent no. 3. Even, so, he seems to have opposed the prayer made by respondent no. 3 for regularisation of his occupation under Section 14 of the Act. The landlord of the accommodation supported the case of respondent no. 3. During the course of arguments the petitioner has also submitted that he constituted a joint Hindu Family with respondent no. 3. Even, so, he seems to have opposed the prayer made by respondent no. 3 for regularisation of his occupation under Section 14 of the Act. The landlord of the accommodation supported the case of respondent no. 3. Rent receipts were also filed by respondent no. 3 indicating that he had been paying rent of the accommodation in question to its landlord from before the commencement of the Amendment Act of 1976 referred to above. It is not disputed that the date of commencement of the aforesaid Amendment Act is 5th July, 1976. On the basis of the material on record the Rent Control and Eviction Officer passed an order on 27th October, 1978, holding that "It is evident that Sri G.D. Vidyarthi has been residing in the house in question with the consent of the landlord since before 5.7.76. So he is entitled to the allotment of the "house in question". Obviously the use of the words "entitled to the allotment" by the Control and Eviction Officer was not appropriate inasmuch as Section 14 does not require any separate order of allotment being passed in favour of the person who is entitled to the benefit of the said section. 4. A revision was filed by the petitioner against the aforesaid order dated 27th October, 1978, before the District Judge under Section 18 of the Act. This revision was dismissed by the IInd Additional District Judge, Allahabad, on 17th April, 1980. The Additional District Judge has on merits of the revision taken the view that the finding recorded by the Rent Control and Eviction Officer was a finding of fact and did not suffer from any such error which could justify interference in a revision under Section 18 of the Act. He has also held that the order dated 27th October, 1978, passed by the Rent Control and Eviction Officer was in view of the findings recorded by him essentially an order under Section 14 of the Act whereby the occupation of respondent no. 3 was regularised and the use of the word "allotment"was inappropriate. He has also held that the order dated 27th October, 1978, passed by the Rent Control and Eviction Officer was in view of the findings recorded by him essentially an order under Section 14 of the Act whereby the occupation of respondent no. 3 was regularised and the use of the word "allotment"was inappropriate. He has further held that since the aforesaid order was an order under section 14 of the Act and was not an allotment order under Section 16 of the Act the revision was not maintainable even otherwise. It is these two orders dated 27th October, 1978, and 17th April, 1980, passed by the Second Additional City Magistrate acting as the Rent Control and Eviction Officer and the IInd Additional District Judge, Allahabad, respectively which are sought to be quashed in the present writ petition. 5. It has been urged by counsel for the petitioner that in taking the view that the possession of the petitioner was that of a trespasser reliance has erroneously been placed in the impugned orders on the judgment dated 23rd May, 1974, of Hon'ble Mr. Justice M.N. Shukla in writ petition no. 354 of 1972. According to the petitioner the said judgment had been delivered on the basis of an affidavit of the landlord which was not a correct affidavit. It has been urged that the same landlord who had filed his affidavit that the petitioner had "entered into possession of the accommodation in question by breaking open the lock of Sardar Pooran Singh had in the proceedings for regularisation of the occupation of respondent no. 3 filed an affidavit stating that the possession of the respondent no. 3 was with his consent from the very inception. In my opinion it is not possible to take the view that there was any inconsistency in the two affidavits filed by the landlord. It is not the case of the petitioner that in the affidavit filed by the landlord in proceedings for regularisation of the occupation of respondent no. 3 he has stated that the possession of the petitioner was with his consent. It has not been brought to my notice that in his subsequent affidavit referred to above the landlord has said anything contrary to what he had stated in his earlier affidavit so far as the petitioner is concerned. 3 he has stated that the possession of the petitioner was with his consent. It has not been brought to my notice that in his subsequent affidavit referred to above the landlord has said anything contrary to what he had stated in his earlier affidavit so far as the petitioner is concerned. In this view of the matter it is not possible to hold that any error was committed by the Rent Control and Eviction Officer of the Additional District Judge in placing reliance on the judgment of Hon'ble Mr. Justice M.N. Shukla referred to above. 6. The petitioner then urged that an application has already been filed for review of the judgment of Hon'ble Mr. Justice M.N. Shukla dated 23rd May, 1974, is writ petition no. 354 of 1972 and that the hearing of the present writ petition may be deferred till the disposal of the review application. On the facts of the instant case I am of opinion that this prayer is not a bona fide one and does not deserve to be accepted. A perusal of paragraph 26 of the writ petition indicates that the petitioner had filed an application earlier also for recalling the aforesaid order of Hon'ble Mr. Justice M.N. Shukla but the said application was dismissed. The petitioner has informed me that the subsequent affidavit filed by the landlord in the proceedings for regularisation of the occupation of respondent no. 3 was filed in the year 1977, i.e. about six years back. The petitioner has further stated that the earlier application which had been made by him for recalling the order of Hon'ble Mr. Justice M.N. Shukla and which was dismissed as aforesaid had been made on the basis of the facts stated by the landlord in his subsequent affidavit in the proceedings for regularisation of the occupation of respondent no. 3. It is thus apparent that an application for recalling the order dated 23rd May, 1974, in Writ Petition No. 354 of 1972 on the basis of the subsequent affidavit filed by the landlord has already been dismissed. The second application for review on the same ground is said to have been filed on 15th April, 1983, a perusal of the order-sheet of the present writ petition indicates that the hearing of the writ petition was expedited by order dated 23rd November, 1982. The second application for review on the same ground is said to have been filed on 15th April, 1983, a perusal of the order-sheet of the present writ petition indicates that the hearing of the writ petition was expedited by order dated 23rd November, 1982. The writ petition, however, does not appear to have been listed for hearing till 5th April, 1983. On 5th April, 1983, when the writ petition was listed for hearing an illness slip was sent by the petitioner, who is appearing in the writ petition in person and whose name is also printed in the cause list as counsel for the petitioner. The writ petition was then listed on 7th April, 1983. On that date the court was informed that the cases of the petitioner, who is also an advocate of this Court, stood adjourned till 18th April, 1983. The writ petition was accordingly directed to be listed on 19th April, 1983. It is in between this period that the second application for review was filed on 15th April, 1983, and on the basis of this second review applications prayer has been made that the hearing of the writ petition may be deferred till the disposal of the second review application. It is in this view of the matter as also in view of the circumstance that an earlier application for recalling the aforesaid order dated 27th May, 1974, has already been dismissed by Hon'ble Mr. Justice M.N. Shukla that I am not inclined to adjourn the hearing of the writ petition till the disposal of the aforesaid application for review. I here is another ground on which I am not inclined to adjourn the hearing of the present writ petition as seen above a special appeal had been filed by the petitioner against the judgment of Hon'ble Mr. Justice M.N. Shukla which had been dismissed by a Division Bench of this Court in limine. In R.N. Tewari v. Board of Revenue (1972 ALJ 424) it has been held that the doctrine of merger applies even where a second appeal has been dismissed by the High Court summarily under Order XLI Rule 11 C.P.C. and in such a case the High Court's decree is the final decree and the decree of the first appellate court merges with it. In this view of the matter it is very doubtful whether the second review application aforesaid is even maintainable, the judgment sought to be reviewed having merged in the judgment of the Division Bench given in the special appeal. 7. Even a part from the view taken by Hon'ble Mr. Justice M.N. Shukla in writ petition no. 354 of 1972, I am of opinion that the possession of the petitioner could not be treated to be a possession of the nature on account of which it could be said that the order dated 7th November, 1974, declaring vacancy in respect of the accommodation in question was bad. On his own case the petitioner took possession of the accommodation in question without any order of allotment. Further it has not been the case of the landlord either in his earlier affidavit or in his subsequent affidavit referred to above that the possession of the petitioner is with his consent, if a person occupies an accommodation to which the provisions of either U.P. Act 3 of 1947 or U.P. Act 13 of 1972 applied without an order of allotment and without the consent of the landlord his possession cannot be said to be authorised and the accommodation notwithstanding his actual physical possession would be deemed to be vacant for purposes of passing either an order of allotment or an order of release or regularisation of possession of a person under Section 14 of the Act. The finding recorded by the Rent Control and Eviction Officer and upheld by the Additional District Judge that possession of respondent no. 3. G.D. Vidyarthi, who is the uncle of the petitioner and who too is an advocate of this Court, is that of a tenant with the consent of the landlord from before the commencement of the Amendment Act of 1976 is essentially a finding of fact and cannot be interfered with in a writ petition under Article 226 of the Constitution. 8. 8. It was then urged by the petitioner that consequent upon the order of allotment having been passed in favour of Bimal Kumar Shukla proceedings under Section 7-A of the U.P. Act 3 of 1947 were initiated against the petitioner but ultimately they were dropped and as such it shall be deemed that the Rent Control and Eviction Officer gave recognition to the right of the petitioner to remain in possession over the accommodation in question. Reliance in support of this submission has been placed on the decision of a Division Bench of this Court in Jagjit Singh v. District Magistrate (AIR 1956 Alld. 486). In my opinion the decision in Jagjit Singh's case (Supra) is clearly distinguishable on facts. That was a case where an order was passed by the Rent Control and Eviction officer in proceedings under Section 7-A of 6th November, 1952 under the proviso appearing under sub-section (1) of Section 7-A of U.P. Act 3 of 1947, which was to the effect :- "Provided that no order under this section shall be passed if the District Magistrate is satisfied that there has been undue delay or it is otherwise inexpedient to do so." In the instant case as is apparent from the writ petition itself no order was ever passed by the Rent Control and Eviction Officer under the aforesaid proviso to Section 7-A of U.P. Act 3 of 1947. The facts stated in the writ petition particularly in Paragraphs 11, 12 and 13 indicate that consequent upon the order of allotment having been passed in favour of Bimal Kumar Shukla proceedings under Section 7-A were entitled against the petitioner. An opportunity was given to the petitioner to show cause but even before the expiry of the time granted to the petitioner for the said purpose an order was passed by the Rent Control and Eviction Officer under Section 7-A (3) of U.P. Act no. 3 of 1947 requiring the petitioner to be evicted with the aid of police. The petitioner brought this fact to the notice of the Rent Control and Eviction Officer that since the time granted by him to the petitioner had not expired the order under Section 7-A (3) could not be passed. 3 of 1947 requiring the petitioner to be evicted with the aid of police. The petitioner brought this fact to the notice of the Rent Control and Eviction Officer that since the time granted by him to the petitioner had not expired the order under Section 7-A (3) could not be passed. It has been specifically stated in Paragraph 12 of the writ petition that realising his mistake the Rent Control and Eviction Officer passed an order which as quoted in the said paragraph of the writ petition reads:- "The police order he withdrawn at once." This apparently was not an order passed under the proviso to Section 7-A (1) of U.P. Act 3 of 1947. Before further proceedings could thereafter be taken by the Rent Control and Eviction Officer under Section 7-A the petitioner filed writ petition no. 354 of 1972 in this Court and further proceedings under Section 7-A were stayed. It was only when the said writ petition was ultimately dismissed on 23rd May, 1974, that the order staying further proceedings under Section 7-A of U.P. Act 3 of 1947 was vacated. By that time U.P. Act 3 of 1947 had already been repeated end was replaced by U.P. Act 13 of 1972 and it was under the latter Act that the order dated 7th September, 1974, was passed declaring vacancy in respect of the accommodation in question. It is in this view of the matter that I am of opinion that the decision in the case of Jagjit Singh (supra) is clearly distinguishable on facts. 9. Lastly it was urged by the petitioner that he constituted a joint Hindu family with respondent no. 3 and the impugned order passed in favour of respondent no. 3, namely the order whereby the occupation of respondent no. 3 has been regularised under Section 14 of U.P. Act 13 of 1972, should be deemed to be an order passed in favour of the petitioner also. I am not inclined to agree with this submission either. Firstly, if this argument of the petitioner is accepted it does not provide any ground for quashing the impugned order. Secondly, the affidavit which was filed by the landlord did not contain the averment that respondent no. 3 had been accepted by him as a tenant of the accommodation in question or that respondent no. Firstly, if this argument of the petitioner is accepted it does not provide any ground for quashing the impugned order. Secondly, the affidavit which was filed by the landlord did not contain the averment that respondent no. 3 had been accepted by him as a tenant of the accommodation in question or that respondent no. 3 had been paying rent of the accommodation in question as a Karta of a co-parcener of a joint Hindu family. Tenancy is a matter of contract and the plea raised by the petitioner is one of fact. This plea not having been raised by him either before the Rent Control and Eviction Officer or the II Additional District Judge, the petitioner is not entitled to raise this plea for the first time in this writ petition. In this connection it may be pointed out that the plea raised by the petitioner that he constitutes a joint Hindu family with respondent no. 3 has been refuted by counsel for respondent no. 3, but in view of what has been held to above I do not consider it necessary to go into this question. 10. No other point has been pressed by the petitioner. 11. In the result I find no merit in this writ petition. It is accordingly dismissed but there shall be no order as to costs. The record of the case which had been summoned in this writ petition may be returned.