JUDGMENT S. D. Agarwal, J. 1. This is a petition under Article 226 of the Constitution, of India arising out of proceedings under section 21 (1) (a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). 2. The premises in dispute is premises No. 2-A/196, Azad Nagar, Kanpur. The petitioner is the landlord. Ram Kumar, respondent no. 2, is the tenant of the said premises. On 27/2Sth August, 1981, an application was filed for release under section 21 of the Act. It was filed initially on the ground that the petitioner had retired from service and he wanted to start legal practice at Kanpur. It may be stated here that the property in dispute is the ground floor portion of the premises. The first and the second floors are occupied by the landlord himself. During the pendency of the release application, the petitioner suffered a very massive heart attack on 23rd December, 1982, and he was hospitalised in the Institute of Cardiology, Kanpur. The doctors advised him that the petitioner should avoid ascending upstairs and consequently on 15th January, 1983, an affidavit was filed by the petitioner bringing this fact to the notice of the court. The petitioner, thereafter, moved an amendment application, supported by an affidavit dated 21st February, 1983, for amendment of the release application. 3. The Prescribed Authority fixed 7th March, 1983, for disposal of the amendment application. On 7th March, 1983, due to unavoidable reasons, the petitioner was not available to the court and, consequently, the release application was dismissed by the Prescribed Authority by an order dated 7th March, 1983, in the following terms : " Case called out repeatedly. Nobody response for the landlord. It is now 11.40 Pairokar for the O. Ps. present. Sri Satish Kohli, Advocate too present for O. P. Today it is fixed for disposal of 27 moved by landlord. Objection against 27 filed. Admit it 27-As nobody is present to press, hence it is hereby rejectesd. "Thereafter, on the same day, another order was passed by the Prescribed Authority to the following effect : "The landlord has not filed any evidence so far. Even he is absent. Order The petition under section 21 of U.P. Act XIII of 1972 is dismissed for want of evidence. " 4. "Thereafter, on the same day, another order was passed by the Prescribed Authority to the following effect : "The landlord has not filed any evidence so far. Even he is absent. Order The petition under section 21 of U.P. Act XIII of 1972 is dismissed for want of evidence. " 4. It is, therefore, clear that the Prescribed Authority dismissed the application under section 21 of the Act in default and not on merits. Aggrieved by the decision dated 7th March, 1983, an application was made for restoration. This restoration application was also dismissed on 19th October, 1983. Since the application was not dismissed on merits, the petitioner was advised to file another application under section 21 (1) (a) of the Act. This was registered as Rent Control Case No, 189 of 1983. It was filed on 2nd November, 1983, 5. Meanwhile, the petitioner was advised to file an appeal under section 22 of the Act against the order dismissing the release application on 7th March, 1983. This appeal was allowed by the appellate authority on 22nd February, 1985, and the case was remanded to the Prescribed Authority for decision afresh. 6. After remand, on 26th March, 1985, the petitioner moved an application u/Section (? Rule) 22 (f) of the Act for consolidating the earlier release application along with the second release application filed by the petitioner on the same ground. This application was contested and, ultimately, the Prescribed Authority allowed the application for consolidation of the two release applications and also afforded an opportunity to the tenant respondent to file evidence in rebuttal. Thereafter, the matter was heard on merits and, ultimately, by an order dated 6th June, 1986, the release application was allowed. Against the order dated 6th June, 1986, an appeal was filed under section 22 of the Act by the respondent no. 2 before the appellate authority. This appeal was allowed on 7th April, 1987, mainly on the technical ground that the second release application could not have been filed and also on the ground that an order merging the two applications for release filed by the petitioner could not have been passed and, as such, the order passed by the Prescribed Authority was not valid in law. It is this order dated 7th February, 1987, which has been challenged in the present petition. It is this order dated 7th February, 1987, which has been challenged in the present petition. It may be noted here that the respondent tenant Ram Kumar is the Director of the National Sugar Institute, Kanpur, and it has been stated in the petition, in paragraph 39, that he is provided with spacious well furnished bungalow, called Director's bungalow, in the premises of the Institute. 7. This petition was filed in this Court on 21st July, 1987. It came up for admission before Hon. Anshuman Singh, J. Hon. Anshuman Singh, J. directed that apart from the normal mode of service, the petitioner is permitted to serve the respondent no. 2 personally. It was further directed that the notice will indicate that the writ petition will be listed for hearing after six weeks and, by that time, a counter affidavit may be filed- The petitioner was also directed to file an affidavit of service. Thereafter, an affidavit of service has been filed by the petitioner. In the affidavit of service, it has been categorically stated that the petitioner presented the notice with its enclosures to Ram Kumar personally on 16th August, 1987. Ram Kumar told him that he would take it the next day. The petitioner again approached the respondent no. 2 on 18 th August, 1987. He read the notice and requested that he would sign and receive the same the next day. On 19th August, 1987, the notice was again presented, but he refused to sign and receive the same in the presence of two respectable persons of the locality. The original summons alongwith the endorsement and signatures of two persons of the locality has been filed alongwith the affidavit of service. It may be noted here that the two witnesses were one Dr. S. P. Gupta Assistant Professor, Department of Plant Pathology, G. S. A. University of Agriculture and Technology, Kanpur, and Satya Paul Kapoor, a resident of 2-A/195, Azad Nagar, Kanpur, where the property in dispute is situate. 8. When the matter came up before this Court on 21st April, 1988, Hon. K. K. Birla, J. directed that notices be again sent to the petitioner through the office and the petition be listed for final hearing in the third week of July, 1983. Notices were sent to the respondent Ram Kumar through despatch no. 8. When the matter came up before this Court on 21st April, 1988, Hon. K. K. Birla, J. directed that notices be again sent to the petitioner through the office and the petition be listed for final hearing in the third week of July, 1983. Notices were sent to the respondent Ram Kumar through despatch no. 5955 dated 22nd April, 1988, and they have been returned with the endorsement 'refused'. It is, therefore, clear that the respondent Ram Kumar is avoiding to take service of the summons of this Court. It is a matter of regret that a person, who is the Director of a prestigeous National Sugar Institute, Kanpur, should show such disrespect to this Court and not even have the courtesy of even accepting the notice issued by this Court inspite of specific orders passed by the two Hon'bte Judges of this Court, The case has now come up for hearing before me. No counter affidavit has been filed, as probably, the respondent Ram Kumar did not think it proper to appear before this Court and file his reply. In any case, the case is to be decided on the allegations made in the petition before this Court. 9. I have heard the learned counsel for the petitioner. 10. Learned counsel for the petitioner has raised two contentions before me. His first contention is that the second release application is maintainable in law and the view taken by the appellate authority is manifestly erroneous. The second contention raised by the learned counsel is that even on the view which was taken by the lower appellate court, that a second release application was not maintainable then too, he had already filed an amendment application in the first release application wherein he had clearly stated that he had suffered a massive heart attack. The appellate authority acted illegally and with material irregularity in exercise of its jurisdiction in ignoring this most material fact while determining the need of the petitioner. It is not disputed that the second release application was filed on 2nd November, 1983. The first release application was dismissed on 7th March, 1983, and the appeal against the said order was allowed on 22nd February,- 1985. It is, therefore, clear that on 2nd November, 1983, the first release application was not pending in the Court. It is not disputed that the second release application was filed on 2nd November, 1983. The first release application was dismissed on 7th March, 1983, and the appeal against the said order was allowed on 22nd February,- 1985. It is, therefore, clear that on 2nd November, 1983, the first release application was not pending in the Court. The appellate court, therefore, has gone on the wrong premise that the second application for release was not maintainable as the first release application was pending. The observations, to the contrary, are manifestly erroneous. 11. Even otherwise, Rule 18 of the Rules framed under the Act is quoted below : "18 (1). Where an application of a landlord against any tenant for permission to file a suit for eviction under section 3 of the old Act, on any ground mentioned in section 21 (1) has been finally allowed or rejected on merits either before or after the commencement of the Act, whether by the District Magistrate or on revision by the Commissioner or the State Government or under clause (i) or clause (m) of section 43 (2) by the District Judge, and the landlord instead of filing a suit for eviction makes an application under section 21 on the same grounds within a period of six months from such decision or from the commencement of the Act, whichever is later, the Prescribed Authority shall accept the findings in those proceedings as conclusive; Provided that the period during which the operation of any permission as aforesaid is stayed by order of any Court or authority shall bs excluded in computing the said period of six months. (2) Where an application of a landlord against tenant under section 21 for the release of any building or any specified part thereof or any surplus land appurtenant to such building is rejected on merits and a fresh application on the same ground is made within a period of one year from that decision, the Prescribed Authority shall accept the findings in those proceedings as conclusive." 12. Sub-rule (2) of the above rule clearly provides that if any application under section 21 of the Act is made within one year from the date of the decision of an earlier application on merits, then the Prescribed Authority shall accept the findings of the earlier case as conclusive. Sub-rule (2) of the above rule clearly provides that if any application under section 21 of the Act is made within one year from the date of the decision of an earlier application on merits, then the Prescribed Authority shall accept the findings of the earlier case as conclusive. This does not, in any manner, debar the filing of a second application. If the first application is dismissed in default and a second application is made within one year then the findings in the decision in the earlier application being conclusive in second application does not arise. In the circumstances, sub-rule (2) of Rule 18 of the Rules framed under the Act is no bar for a person filing a fresh application within one year if the first application is dismissed in default. The view to the contrary, taken by the appellate authority is manifestly erroneous. In regard to the second submission, it has been stated in paragraph 9 of the petition that on 21st February, 1983, the petitioner had moved an application for amendment to the first release application before the Prescribed Authority. In the amendment application, he had specifically stated about the fact that he had suffered a massive heart attack on 23rd December, 1982, and he had specific need of the ground floor of the house in dispute. In view of these facts, it is clear that the observation made by the appellate authority, that no amendment application had been made to the first release application is wholly incorrect and, as such, the appellate authority erred in not considering the fact of massive heart attack to the petitioner, which took place on 23rd December, 1982. In view of the above, the second contention raised by the learned counsel for the petitioner is also well founded. 13. I have examined the judgment given by the Prescribed Authority. In my opinion, the findings recorded by the Prescribed Authority are in accordance with law. The petitioner has suffered a massive heart attack and has also retired. The respondent no. 2, Ram Kumar, as I have already stated above, is a Director of the National Sugar Institute at Kanpur, and is provided with a spacious well furnished bungalow called the Director's bungalow in the campus of the institute and, as stated in paragraph 39 of the petition, he is not deliberately availing that facility. 14. The respondent no. 2, Ram Kumar, as I have already stated above, is a Director of the National Sugar Institute at Kanpur, and is provided with a spacious well furnished bungalow called the Director's bungalow in the campus of the institute and, as stated in paragraph 39 of the petition, he is not deliberately availing that facility. 14. In the result, the petition is allowed. The order dated 7th February, 1987, is hereby quashed and that of the Prescribed Authority is restored. The Prescribed Authority is directed to enforce the release order forthwith. In the circumstances of the case, the parties are directed to bear their own costs. Petition allowed.