JUDGMENT A.N. Dikshita, J. - The petitioner Uma Shanker Pathak has filed this petition under Article 226 of the Constitution of India for issuing a writ of certiorori for quashing the order, dated 2251986 passed by respondent No. 1 (Additional District Judge, Kanpur), rejecting the revision of the petitioner, the order, dated 1541986 passed by respondent No. 1 rejecting the application of the petitioner for taking documents on record, the order, dated 331986 passed by respondent No. 2 (Rent Control and Eviction Officer/District Supply Officer, Kanpur Nagar) and the order, dated 28121985 passed by respondent No. 2 declaring vacancy of the shop in dispute. 2. The facts encompassing the controversy required to be detailed in extenso. 3. It has been set forth in the petition that Suraj Bhan Agarwal, father of the respondent Nos. 3 to 7, was the landlord of the shop in dispute (in premises No. 79/10, Latouche Road, Kanpur). Initially Smt. Usha Singh, respondent No. 8 was the tenant of the shop in dispute till March, 1965. Later on, the petitioner was inducted as a tenant by Suraj Bhan Agarwal and the rent was enhanced from Rs. 12 to Rs. 21 per month. The rent for the period April to August, 1965 was paid for which a receipt for Rs. 105 was issued. It has been mentioned that the earlier receipts were issued in favour of M/s. Oriental Engineering Company, Proprietor Smt. Usha Singh, but from March, 1965 when the petitioner became tenant the name of Smt. Usha Singh was not mentioned and the receipts were issued in favour of M/s. Oriental Engineering Company. 4. Suraj Bhan Agarwal expired on 1111966 and respondent Nos. 3 to 7 inherited the rights of the landlord. 5. Respondent Nos. 3 to 7 dishonestly, sometime in the year 1967, demanded money from the petitioner which demand being illegal and unwarranted was spurned by the petitioner. 6. Sri V.K. Agarwal, respondent No. 3, filed suit No. 2540 of 1967 for the ejectment of the petitioner and Smt. Usha Singh, alleging that the shop in dispute had been illegally sublet by Smt. Usha Singh in favour of the petitioner. The suit was contested by the petitioner and Smt Usha Singh, it was, however, decreed by the trial court and an appeal preferred against the judgment and order decreeing the suit, was also dismissed. 7. The suit was contested by the petitioner and Smt Usha Singh, it was, however, decreed by the trial court and an appeal preferred against the judgment and order decreeing the suit, was also dismissed. 7. The petitioner alongwith Smt. Usha Singh filed a Second Appeal No. 2097 of 1974, Smt. Usha Singh and another v. Virendra Kumar Agarwal, in this Court. This appeal was allowed on 751981 on the ground that V.K. Agarwal, respondent No. 3, being a coowner of the shop in dispute had no right to maintain the suit alone. The suit filed by the respondent No. 3 (Sri V.K. Agarwal) was dismissed by this Court. 8. After about more than four years of the decision of the High Court in the above second appeal dismissing the suit, the respondent No. 3 (V.K. Agarwal) filed an application on 2961985 for the declaration of the vacancy of the shop in dispute within the postulates of Section 12 of the Act and for the release of the shop in favour of the respondent No. 3 (V.K. Agarwal) as contemplated under Section 16 of the Act. 9. Objections to this application were filed by the petitioner before the respondent No. 2 (Rent Control and Eviction Officer, Kanpur) on 16111985. However, the respondent No. 3 protested to the participation of the petitioner in the proceedings by filing an application on 25111985. Respondent No. 3 (V.K. Agarwal) also filed an application on 2121985 for the impleadment of respondent Nos. 4 to 7 as pro forma respondent in view of their being coowners. The petitioner again filed objections to this application of respondent No. 3 on 9121985. As per the directions of respondent No. 2 written arguments were also submitted on 18121986 by the petitioner. Respondent No. 2 by his order, dated 28121985 declared the vacancy of the shop in dispute. 10. The petitioner being aggrieved by the declaration of the vacancy preferred writ petition No. 425 of 1986, Uma Shanker Pathak v. Rent Control and Eviction Officer but this writ petition was dismissed in limine with the following order: It is not a fit case for interference under Article 226 of the Constitution of India. Rejected. Sd/ A.S. 531986. 10. The petitioner being aggrieved by the declaration of the vacancy preferred writ petition No. 425 of 1986, Uma Shanker Pathak v. Rent Control and Eviction Officer but this writ petition was dismissed in limine with the following order: It is not a fit case for interference under Article 226 of the Constitution of India. Rejected. Sd/ A.S. 531986. On 411986 the petitioner filed an application for the appointment of a commission and also for permission to file objections against the application filed by the respondent for the release of the shop in dispute. 11. Respondent No. 2 by his order, dated 2821986 allowed the impleadment application, dated 2121985 filed by respondent No. 3 somehow or the other, but dismissed the application of the petitioner to permit him to file objections to the release application. 12. The respondent No. 2 by his order, dated 331986 allowed the release application of the respondent and the shop in dispute was released in favour of the respondent No. 3. The petitioner in view of dismissal of the writ petition filed by him earlier against the order, dated 28121985 declaring vacancy, then rightly preferred Rent Control Revision No. 24 of 1986, Uma Shanker v. Virendra Kumar and others, against the order, dated 331986 releasing the shop in dispute in favour of the respondent No. 3. An application supported by an affidavit was filed on 1831986 during the pendency of this revision for taking documents on record. This application was dismissed by respondent No. 1 on 1541986. Later on the revision preferred by the petitioner was also rejected by respondent No. 1 on 2251986. 13. It has been alleged by the petitioner that respondent Nos. 1 and 2 committed illegality in declaring the vacancy of the shop in dispute and its consequent release in favour of the respondent. It has also been alleged that the previous decision between the parties is not res judicata and the findings arrived at in the suit are not binding between the parties as the suit was dismissed on the ground of nonmaintainability, having been filed by respondent No. 3 alone. It has also been alleged that no opportunity was given by respondent Nos. It has also been alleged that no opportunity was given by respondent Nos. 1 and 2 to the petitioner to produce necessary and cogent evidence in support of his case and that Suraj Bhan Agarwal having once given his consent for the creation of the tenancy in favour of the petitioner the case of the petitioner is covered by Section 14 of U.P. Act 13 of 1972 as amended (hereinafter called the Act). It has also been alleged that Section 12(b) of the Act is not applicable to a case of a subtenant to whom the shop was sub let before the enforcement of the Act and in any case respondent No. 3 alone had no right to file the release application. Lastly it has been alleged that a suit under Section 20 of the Act could have been filed by the respondent but an application under Section 16 of the Act was not maintainable. 14. The petitioner has claimed for the quashing of the orders mentioned above, under Article 226 of the Constitution of India. 15. A detailed counteraffidavit has been filed by respondent No. 3. The allegations in the writ petition have been repudiated. It has been stated in the counteraffidavit that suit No. 2540 of 1967 was filed by respondent No. 3 in the court of Munsif, Kanpur, on the ground of (sub) letting and default n the payment of rent against Smt. Usha Singh and Uma Shanker Pathak, petitioner. The suit was decreed for the ejectment of Smt. Usha Singh and the petitioner. 16. Aggrieved against the judgment and order decreting the suit, a Civil Appeal No. 292 of 1972 was filed by Smt. Usha Singh and the petitioner in the Court of District Judge, Kanpur. This appeal filed by Smt. Usha Singh and the petitioner was dismissed on 1481974 by the 1st Additional Civil Judge, Kanpur. 17. Against the judgment and order dismissing the appeal Smt. Usha Singh and the petitioner filed a second Appeal No. 2087 of 1974 in the High Court. This second appeal was allowed on 751981 by this Court and the suit of the respondent No. 3 was dismissed as not maintainable. However, this Court affirmed the finding of subletting. 18. 17. Against the judgment and order dismissing the appeal Smt. Usha Singh and the petitioner filed a second Appeal No. 2087 of 1974 in the High Court. This second appeal was allowed on 751981 by this Court and the suit of the respondent No. 3 was dismissed as not maintainable. However, this Court affirmed the finding of subletting. 18. The Respondent No. 3 then moved a review petition in this Court against the judgment, dated 751981 passed by K.C. Agatwal, J. (as he then was), but after hearing, it was dismissed on 1541983. 19. Respondent No. 3 then filed an application on 2961985 under Section 16(1)(b)/Section 12 of the Act for the declaration of the vacancy as well as for the release of the shop in dispute as contemplated under Section 16 of the Act in his favour. Respondent No. 2 by his order, dated 28121985 declared the vacancy within the meaning of Section 12 of the Act on the ground that Smt. Usha Singh and the petitioner were hand in glove with each other and were illegally trying to remain in possession of the shop in dispute. It was found by Respondent No. 2 that the petitioner is a subtenant and is in fact an unauthorised occupant. This finding was arrived at on a perusal of the judgments passed in the civil suit, in the appeal and in the Second Appeal. 20. After declaration of the vacancy on 28121985, the Respondent No. 2 later on released the shop in dispute in favour of the Respondent No. 3 vide his order, dated 331986, However, the petitioner and M/s. Oriental Engineering Company filed Writ Petition (No. 425 of 1986) on 531986 against the order, dated 28121985 declaring the vacancy. This, writ petition was specifically filed for quashing the order, dated 28121985 with a further direction not to release the shop in favour of Respondent No. 3. This writ petition was dismissed in limine on 531986, as shown above. 21. After the dismissal of the writ petition, the petitioner filed a revision under Section 18 of the Act against the orders, dated 28121985 and 331986 passed by Respondent No. 2. 22. It has further been setforth in the counteraffidavit that while filing an affidavit in Second Appeal No. 2097 of 1974 it was shown that the petitioner was a partner in the said business alongwith Smt. Usha Singh. 22. It has further been setforth in the counteraffidavit that while filing an affidavit in Second Appeal No. 2097 of 1974 it was shown that the petitioner was a partner in the said business alongwith Smt. Usha Singh. It was also averred in the affidavit that Smt. Usha Singh had deposited rent on 321975. Another affidavit of Ram Autar Pathak, brother of the petitioner, was also filed wherein it was deposed that the petitioner was a partner in the business. It has thus been alleged that from the very inception of the litigation the petitioner had shown himself to be a partner in the business with Smt. Usha Singh. Respondent No. 3 in the counteraffidavit has thus alleged that the petitioner is adopting different postures as per his convenience and is now styling himself to be the tenant of the shop in dispute. It has been alleged by Respondent No. 3 that the rent receipts were issued in the name of Oriental Engineering Company owned by Smt. Usha Singh only and in any case the controversy stands resolved by the judgment in the suit as well as by the order, dated 23121985 passed by Respondent No. 2. It has also been alleged in the counteraffidavit that the second Appeal was dismissed by this Court on the technical ground that Respondent No. 3 alone had no right to maintain the suit without other coowners being impleaded. However, it has been alleged that the findings of fact recorded by the trial court and affirmed by the first appellate court were confirmed by this Court. It has thus been alleged that the findings of fact recorded in the civil suit and affirmed by the first appellate court and confirmed in the second appeal by this Court are binding on the parties. The other allegations of the writ petition were specifically denied. 23. A rejoinderaffidavit has been filed reiterating the allegations in the writ petition and repudiating the allegations in the counteraffidavit. 24. Heard counsel for the parties at length. 25. The other allegations of the writ petition were specifically denied. 23. A rejoinderaffidavit has been filed reiterating the allegations in the writ petition and repudiating the allegations in the counteraffidavit. 24. Heard counsel for the parties at length. 25. Learned counsel for the petitioner has raised several pleas challenging the order, dated 28121985 passed by Respondent No. 2 declaring the vacancy and then releasing the accommodation vide order, dated 331986, the order of the Respondent No. 1, dated 1541986 rejecting the application of the petitioner for taking the documents on record and the ultimate order, dated 2251986 rejecting the revision preferred by the petitioner. It has been submitted that the Respondent No. 2 erred in law while assuming a jurisdiction which otherwise did not vest in him in declaring the vacancy of the shop in dispute. It is this declaration of vacancy which has given rise to another innings of a fierce litigation between the parties. The petitioner is persevering to preserve his possession over the shop in dispute while Respondent No 3 is trying to force the petitioner to brave the fury of rain and sun by his eviction. Instantly both the parties are exercising legal manoeuverings to hoodwink or outwit the other. 26. Such a sordid saga of litigation started 24 years back. The shop in dispute was let out on a monthly rent of Rs. 2 and the first Receipt No. 1038 shows 'Kashiram Surajbhan' (as landlord) and the first receipt has been issued by Kashiram Surajbhan in favour of Oriental Engineering Co. Sole Proprietor Usha Singh on 5 41965. The person who has received the rent is Respondent No. 3 (V.K. Agarwal). This receipt is for the month of March, 1965 and has been issued by V.K. Agarwal, present Respondent No. 3. Another Receipt No. 1149 has been issued by Kashiram Surajbhan on 2891965 for Rs. 105 being the rent for the month of April, may, June, July and August, 1965. This receipt has also been issued by Respondent No. 3 (V.K. Agarwal) and only bears the name of the tenant as Oriental Engineering Co.. This receipt further shows that the rent of the shop in dispute was enhanced from Rs. 12 to Rs. 21 inclusive of house tax. This receipt has also been issued by Respondent No. 3 (V.K. Agarwal) and only bears the name of the tenant as Oriental Engineering Co.. This receipt further shows that the rent of the shop in dispute was enhanced from Rs. 12 to Rs. 21 inclusive of house tax. The petitioner has alleged that the shop in dispute was let out to him with the consent of Surajbhan landlord who on his such induction had enhanced the rent from Rs. 12 to Rs. 21. However, the Respondent No. 3 does not recognise this fact and has alleged that the shop in dispute has been sublet to the petitioner. Surajbhan who is attributed to have consented to let out the accommodation to the petitioner, died on 1111966. 27. Respondent No. 3 (Virendra Kumar Agarwal) son of Surajbhan filed original Suit No. 2540 of 1967, on the ground of subtenancy alleging the shop in dispute has been sublet by the tenant in favour of Uma Shanker Pathak (petitioner) and claiming a decree of ejectment of the petitioner. In this suit Usha Singh and petitioner were arrayed as defendants. The suit was decreed by the trial court. 28. The defendant (Smt. Usha Singh and Uma Shanker Pathak) feeling aggrieved against the judgment and order decreeing the suit preferred an appeal which was dismissed. 29. A Second Appeal No 2097 of 1974, Smt Usha Singh and others v. V.K. Agarwal was preferred to this Court. This Second Appeal was allowed by K.C. Agarwal (as he then was) on 751981 and the judgment and decree passed by the courts below were set aside and the suit for ejectment was accordingly dismissed. It was held by this Court that the suit filed by Sri V.K. Agarwal (present Respondent No. 3) alone is not maintainable and in the absence of other legal heirs of the deceased Surajbhan, Virendra Kumar Agarwal had no right to sue. The suit, as stated above, was dismissed on this ground. 30. After a lapse of about 4 years and 6 months the petitioner came to know about some proceedings for declaration of vacancy of the shop in dispute were penping before Respondent No. 2. It was further found that an application for the release of the accommodation within the postulates of Section 16 has been filed by Virendra Kumar Agarwal. 30. After a lapse of about 4 years and 6 months the petitioner came to know about some proceedings for declaration of vacancy of the shop in dispute were penping before Respondent No. 2. It was further found that an application for the release of the accommodation within the postulates of Section 16 has been filed by Virendra Kumar Agarwal. During the pendency of the proceedings for the declaration of the vacancy and the application for release, another application was filed by Respondent No. 2 on 25111985 to the effect that the status of the petitioner in the shop in dispute be determined first and thereafter the case be disposed of on merits. 31. Later on 2121985 respondent No. 3 filed an application to implead other coowners as pro forma opposite parties to the proceedings. 32. The parties (petitioner and Respondent No. 3) to the proceedings made their submissions on the application, dated 25111985 on 9121985. The petitioner also submitted his written arguments on 18121985. The respondent No. 2 by his order, dated 2821985 (Annexure 4 to the writ petition) declared vacancy of the shop in dispute. 33. The application for the impleadment of the other coowners was allowed on 28121986 by respondent No. 2. 34. Ultimately, the shop in dispute was released in favour of Respondent No. 3 (V.K. Agarwal) by respondent No. 2 by his order, dated 331986. 35. The petitioner feeling aggrieved against the order, dated 23121985 passed by respondent No. 2 declaring the vacancy preferred a Writ Petition (No. 425 of 1986). This writ petition was directed only against the order, dated 28121985 passed by respondent No. 2 declaring vacancy of the shop in dispute. However, on 531986 when the writ petition was filed it was dismissed in limine as the law then stood. 36. The petitioner then preferred a revision to the Court of District Judge under Section 18 of Act XIII of 1972 as amended upto date. An application for admission of documents on record was filed on 1831986 but was rejected by respondent No. 1 vide order, dated, 1541986. The revision was also dismissed by respondent No. 1 on 2251986. 37. After elaborating the marathon proceedings, as mentioned above, learned counsel for the petitioner has submitted that the accommodation cannot be deemed to be vacant within the meaning of Section 12 of the Act. The revision was also dismissed by respondent No. 1 on 2251986. 37. After elaborating the marathon proceedings, as mentioned above, learned counsel for the petitioner has submitted that the accommodation cannot be deemed to be vacant within the meaning of Section 12 of the Act. To appreciate this submission it is necessary to advert to certain salient provisions of United Provinces (Temporary) Control of Rent and Eviction Act, 1947 (Old Act). Section 2(h) of the Old Act defines word 'vacant'. It is reproduced herein below: (h) Vacant where used with reference to any accommodation, includes an accommodation about to fall vacant an intimation whereof has been sent by the tenant or the landlord to the District Magistrate. 38. Section 7(1) of Act III of 1947 provided the procedure for intimating the District Magistrate on an accommodation becoming vacant while Section 7(1)(a) is enumerated below: 7. Control of Letting. (1)(a) Every landlord shall, within 7 days after an accommodation become vacant by his ceasing to occupy it or by the tenant vacating it or otherwise ceasing to occupy it or by termination of a tenancy or by release from requisition or in any other manner whatsoever give a notice of the vacancy in writing to the District Magistrate. A bare perusal of this provision provides that it was incumbent on the landlord to intimate the District Magistrate within 7 days after an accommodation has become vacant by his ceasing to occupy it or by the tenant vacating it or otherwise ceasing to occupy or by release from requisition or by any other manner whatsoever. Such an intimation was required to be sent to the District Magistrate in writing. 39. Section 7(1)(b) is also reproduced below: (b) Every tenant, occupying accommodation shall within 7 days of vacation of such accommodation, or ceasing to occupy it, give notice thereof in writing to the District Magistrate. It casts a duty on the tenant also to give a notice to the District Magistrate within 7 days on vacating the accommodation or ceasing to occupy it. 40. It casts a duty on the tenant also to give a notice to the District Magistrate within 7 days on vacating the accommodation or ceasing to occupy it. 40. It is on the event of such a contingency having arisen as provided under Section 7(1)(a) or 7(1)(b) of Act No. III of 1947 that the District Magistrate assumed power as contemplated under Section 7(2) of the Act to let or not let to any person any accommodation which is or has fallen vacant or is about to fall vacant either by a general order or by special order. 41. However, the respondent No. 3 had filed a suit against Smt. Usha Singh and the petitioner some time after a lapse of two years on the ground that the former had sublet the shop in dispute to the latter. 42. It may be relevant to mention here that at that stage it was nowhere alleged by respondent No. 3 that the petitioner has illegally occupied the accommodation exclusively to the detriment of the respondent No. 3 and in any case has usurped the shop in dispute in an unauthorised manner. The respondent No. 3 had alleged that the occupation of the petitioner is contrary to the provisions of Act III of 1947 (Old Act) as Smt. Usha Singh has sublet the accommodation in her tenancy without the permission in writing of the landlord and of the District Magistrate having been previously obtained as required under Section 7(3). It was thus alleged unauthorised occupation by the petitioner as a subtenant which was challenged by respondent No. 3. Section 3(1) of Act III of 1947 prohibited riling of a suit without the permission of the District Magistrate against the tenant for his eviction from any accommodation. Some exceptions were made which did not warrant such permission from the District Magistrate being obtained and the suit for the eviction could be filed on the grounds enumerated under Section 3(1)(a) to 3(1)(g) of the Old Act. The relevant provision which was invoked by respondent No. 3 while filing a suit in the civil court against Smt. Usha Singh and the petitioner is to be found in Section 3(1)(e) which is quoted in extenso: 3(1)(e) that the tenant has, on or after the 1st day of October, 1946, sublet the whole or any portion of the accommodation without the permission of the landlord. 43. 43. It was alleged by respondent No. 3 that the tenant Smt. Usha Singh had sublet the accommodation without complying with the requirements as postulated under Section 7(3) of the Old Act and claiming the bar having been removed, filed the suit contending that Smt. Usha Singh has sublet the accommodation without the necessary permission of the landlord and the District Magistrate having been previously obtained. It may be significantly mentioned here that while Section 7(3) provided that the prior permission of the landlord and the District Magistrate has to be obtained in writing for the creation of subtenancy. However in Section 3(1)(e) there is no mention of any prior permission being obtained in writing either by the landlord or by the District Magistrate. The word envisaged are regarding the accommodation being sublet without the permission of the landlord. 44. It is again very relevant to mention here that at that stage when the alleged subtenancy is alleged to have been created the respondent No. 3 did not contend that the tenant has ceased to occupy the shop in dispute. It was also not alleged that the petitioner is in illegal and exclusive possession of the shop in dispute and is holding it exclusively, receiving a valuable consideration. At that stage only the plea of subtenancy was advanced by respondent No. 3. 45. The suit was accordingly decreed (as stated above) for eviction of the defendants (Smt. Usha Singh and defendant No. 1 and petitionerdefendant No. 2). 46. Aggrieved against the judgment and order decreeing the suit for ejectment of the defendants, an appeal was preferred by defendants which too was dismissed. The defendants Smt. Usha Singh and the petitioner then preferred a second appeal to this Court (Second Appeal No. 2097 of 1974, Smt. Usha Singh and others v. V.K. Agarwal, which was allowed by judgment and order dated 751981. The suit of the plaintiff was dismissed for the ejectment of the defendants as being not maintainable. It was held that the respondent No. 3 alone had no right to sue (as shown above.) 47. The suit of the plaintiff was dismissed for the ejectment of the defendants as being not maintainable. It was held that the respondent No. 3 alone had no right to sue (as shown above.) 47. Respondent No. 3, Virendra Kumar Agarwal after a lapse of about 4 years then filed an application for the release of the shop in dispute under Section 16 of the Act, alleging that it is vacant within the meaning of Section 12 of Act XIII of 1972 and as it is bonafide required by him to cater his personal requirement it is liable to be released in his favour. It may be salutarily mentioned here that his application for the release of the shop in dispute was filed by respondent No. 3, Virendra Kumar Agarwal alone and not by the other heir of the deceased Surajbhan. Admittedly this Court had held that after the death of Suraj Bhan the property of Suraj Bhan devolved on all his heirs. 48. There is no dispute that there are other legal heirs of the deceased Suraj Bhan. It was on this ground that the suit was dismissed for the ejectment of the defendants by this Court vide judgment and order dated 751981. 49. Act XIII of 1972 has been enforced w.e.f. 171972. Section 12 details the contingencies in which there would be deemed vacancy of building in certain cases. For a better appreciation of the controversy the provisions of Section 12 of Act XIII of 1972 require to be recited herein below in extenso: 12. Deemed vacancy of building in certain cases (1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if (a) he has substantially removed his effects therefrom, or (B) he has allowed it to be occupied by any person who is not a member of his family, or (c) in the case of residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere. (2) In the case of nonresidential building where a tenant carrying on business in the building, admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building. (2) In the case of nonresidential building where a tenant carrying on business in the building, admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building. (3) In the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under this tenancy upon the expiration of a period of one year from the said date. 50. It appears that earlier in Act III of 1947 vacancy was not comprehensively defined and the discretion was more or less left to the District Magistrate to determine the factum of vacancy where no such intimation either by landlord or tenant was received by him in writing within the time provided. However, to remove anomalies and give larger scope for the determination of the vacancy, Section 12(1) provided that a landlord or tenant of a building shall be deemed to have ceased to occupy the building or part thereof if he has substantially removed his effects therefrom or has allowed it to be occupied by any person who is not a member of his family or in the case of residential building he or any member of his family has taken up his residence, not being temporary residence, elsewhere. In Section 12(2) it has been provided that in the case of nonresidential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner then the tenant shall be deemed to have ceased to occupy the building. 51. From a perusal of the above provisions the thrust appears to be on the cessation of the accommodation by either the landlord or the tenant. 52. Section 41 of the Act XIII of 1972 provides power to make rules. It has been provided that the State Government may by notification in the Gazette make rules to carry out the purpose of this Act including any rules prescribing fees in respect of any proceedings under the Act. 52. Section 41 of the Act XIII of 1972 provides power to make rules. It has been provided that the State Government may by notification in the Gazette make rules to carry out the purpose of this Act including any rules prescribing fees in respect of any proceedings under the Act. In exercise of such power so conferred under Section 41, Rules were framed. 53. Rule 8 provides the manner for the ascertainment of vacancy. Rule 9 contemplates notice of vacancy while Rule 10 provides for the allotment procedure. Rule 13 details the manner in which application for release of vacant building within the meaning of Section 16(1)(b) has to be made. Rule 13 being very material for the determination of the controversy is reproduced below: 13. Application for release of vacant buildings. [Section 16(1)(b)]. (1) Every application for release under clause (b) of subsection (1) of Section 16 shall specify the grounds on which the building or part thereof or any land appurtenant thereto is sought to be released. (2) The application or any objection thereto shall be signed and verified in the manner prescribed under Rules 14 and 15 of Order VI of the First Schedule to the Code of Civil Procedure, 1908. If there are more than one landlord or alleged tenants, as the case may be, the application may be signed by one of them, but in any such case the colandlord shall be arrayed as pro forma oppositeparties. (3) Where the application referred in subrule (1) is made on the ground that the building is required for demolition and new construction the procedure laid down in Rule 1, shall mutatis mutandis be followed. (4) Every application under this rule shall, as far as possible, be decided within one month from the date of its presentation, and no allotment in respect of a building covered by an application under this rule shall be made unless such application has been rejected. 54. Rule 13(2) provides that the application or any objection thereto shall be signed and verified in the manner prescribed under Rules 14 and 15 of Order XVI of the First Schedule to the Code of Civil Procedure. It has significantly provided that if there are more than one landlords the applications may be signed by one of them but in any such case, the colandlords shall be arrayed as pro forma oppositeparties. 55. It has significantly provided that if there are more than one landlords the applications may be signed by one of them but in any such case, the colandlords shall be arrayed as pro forma oppositeparties. 55. Instantly it may be mentioned that initially Respondent No. 3, Virendra Kumar Agarwal himself filed an application for the release of the accommodation in his favour without arraying other colandlords either as applicants or impleading them as pro forma oppositeparties. 56. This application for the release of the shop in dispute was filed after a lapse of 21 years. 57. It appears to be intriguing as to why such an application was filed when as per the allegations of the Respondent No. 3 the petitioner was a subtenant and was inducted into the shops in dispute for violation of the provisions of Act III of 1947. Section 20(2) provides the contingency where a suit for eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds: 58. Relevant for the purpose is Section 20(2)(e) mentioned hereinbelow: (e) that the tenant has sublet, in contravention of the provisions of Section 25, or as the case may be, of the Old Act the whole or any part of the building. 59. Earlier there was no provision prohibiting subletting. Act III of 1947 had only provided that in case of subletting being done without the permission of the landlord a suit for eviction of the tenant can be filed. However, Section 25 of the Act was incorporated providing for prohibition of subletting. It is for the purpose of appreciation reproduced hereinbelow: 25. Prohibition of subletting. (1) No tenant shall sublet the whole of the building under his tenancy. (2) The tenant may with the permission in writing of the landlord and of the District Magistrate, sublet a part of the building. Explanation For the purpose of this section (i) Where the tenant ceases, within the meaning of clause (b) of subsection (1) or subsection (2) of Section 12, to occupy the building or any part thereof, he shall be deemed to have sublet that building or part; (ii) lodging a person in a hotel or a lodging house shall not amount to subletting. It is thus imperative to explore whether the shop in dispute has become vacant within the meaning of Section 12 of the Act and also that the petitioner is subtenant of the shop in dispute or is in occupation of it. In this connection two submissions have been made at the Bar by the learned counsel for the petitioner. 60. It has been submitted that the findings recorded in the suit or appeal therefrom would not act as res judicata. Secondly, it has been contended by the learned counsel for the petitioner that in any case factum of creation of subtenancy was created as alleged by Respondent No. 3 in the year 1964 and after a lapse of 21 years the Respondent No. 2 assumed a jurisdiction which otherwise did not vest in him in declaring the shop in dispute to be vacant. 61. Learned counsel for the petitioner has submitted that there is no vacancy in the eye of law and Section 12 or Section 25 of the Act cannot apply. Rightly, reliance has been placed in the case of Laxmi Narain and others v. Ist Additional District Judge, Muzaffarnagar and others, 1984 (1) ARC 170, I respectfully agree to the view of N.D. Ojha, J. as he then was. Rightly, reliance has been placed in the case of Laxmi Narain and others v. Ist Additional District Judge, Muzaffarnagar and others, 1984 (1) ARC 170, I respectfully agree to the view of N.D. Ojha, J. as he then was. For a better appreciation it would be appropriate to quote in extenso the findings recorded in the case of Laxmi Narain and others v. Ist Additional District Judge, (ibid): Having heard counsel for the parties, I am of opinion that even though Section 12(1)(b) of the Act has been held to be retrospective in Smt. Kesar Bai's case (supra) the impugned orders, because of the finding recorded by the authorities below that Respondent No. 5 had been living in the accommodation in question as a licensee from before the commencement of the Act, cannot be quashed in view of the decision of this Court in Smt. Gulab Dei v. 7th Additional District Judge, Kanpur 1981 ARC 602 where relying on the decision of a Full Bench of five Judges in Smt. Ram Mani Devi v Rent Control and Eviction Officer, Allahabad 1976 AWC 1 and certain other decisions of this Court it was held that Section 25 of the Act was not retrospective and consequently where the subletting is alleged to have taken place prior to the coming of the Act into force, the question will have to be decided without reference to the provisions of Section 25 or Section 12 of the Act. In the instant case since Respondent No. 5 had been living in the accommodation in the question from much before the commencement of the Act, the subletting according to the petitioners had taken place before the commencement of the Act. The question as to whether Respondent No. 5 was a subtenant or not had, therefore, to be decided in accordance with the provisions of Section 7(3) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, without reference to the provisions of Section 25 or Section 12 of the Act. The question as to whether Respondent No. 5 was a subtenant or not had, therefore, to be decided in accordance with the provisions of Section 7(3) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, without reference to the provisions of Section 25 or Section 12 of the Act. The finding recorded by the authorities below that Respondent No. 5 who was the soninlaw of Nazar Mohammad had been living in the accommodation in question as a licensee from before the year 1965 and that he was not a subtenant is essentially a finding of fact based on appraisal of evidence and does not suffer from any such error which may justify interference under Article 226 of the Constitution. As seen above the Additional District Judge has in this connection held that there was no evidence that Respondent No. 5 was in exclusive possession of any portion of the accommodation in question and that considering the relationship which in Respondent No. 5 stood with Nazar Mohammad and thereafter with Respondents 3 and it could not be said that the accommodation in question had been sublet to Respondent No. 5. 62. Learned counsel for the petitioner has submitted that the decision in the case of Smt. Usha Singh v. Virendra Kumar Agarwal, 1981 ALJ 723, where the suit was dismissed by this Court as not maintainable having not been filed by all the landlords could not provide an opportunity to the petitioner to assail the findings recorded therein. No such findings would be deemed to be res judicata. Suffice it to say that no useful purpose would be served to examine that aspect. Once it has been (sic) above that Sections 12 and 25 of the Act would not come to the rescue of the Respondent No. 3 to get the accommodation declared as vacant as has been held in the case of Laxmi Narain and others v. Ist Additional District Judge, (supra). 63. Learned counsel for the petitioner has submitted that Rule 13, subclause (2) provided that the application for release under Section 16(1)(b) may be signed by one of the landlords but in any such case the colandlord shall be arrayed pro forma opposite parties. It was not done. An objection to that effect was taken that the application is not maintainable which prompted the respondent to file an application under Order 1, Rule 10, CPC. 64. It was not done. An objection to that effect was taken that the application is not maintainable which prompted the respondent to file an application under Order 1, Rule 10, CPC. 64. Learned counsel for the petitioner has further submitted that the application for release was not maintainable and the subsequent application for the impleadment of the other colandlords as oppositeparties is not recognised by the Act as the provisions of Order 1, Rule 10, CPC are not applicable. Section 34 of the Act provides powers of various authorities and procedure to be followed by them. A recital of Section 34 is necessary so as to extract whether the Rent Control and Eviction Officer had any power to allow or permit a party to implead other colandlords as opposite parties or as applicants within the ambit of Order 1, Rule 10 CPC. 65. The recital below would clearly show that such powers did not vest either in the District Magistrate or in the Rent Control and Eviction Officer or the Prescribed Authority or an appellate or revising Authority. Only powers as are vested in the civil court under the Code of Civil Procedure when trying a suit has been specified in Section 3(a) to (g): 34. Powers of various authorities and procedure to be followed by them. (1) The District Magistrate, the prescribed authority or any (appellate or revising authority) shall for the purposes of holding any inquiry or hearing (any appeal or revision) under this Act have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908 (Act No. V of 1908), when trying a suit, in respect of the following matters namely (a) summoning and enforcing the attendance of any person and examining him on oath; (b) receiving evidence on affidavits; (c) inspecting a building or its locality, or issuing commission for the examination of witnesses or documents or local investigation; (d) requiring the discovery and production of documents; (e) awarding subject to any rules made in that behalf, costs or special costs to any party or requiring security for costs from any party; (f) recording a lawful agreement, compromise or satisfaction and making an order in accordance therewith; (g) any other matter which may be prescribed. 66. 66. In this context it is also necessary to appraise the powers in the Code of Civil Procedure as enjoined under Rule 22 which are reproduced below: 22. Power under the Cede of Civil Procedure, 1908 [Section 34(1)(g)]. The District Magistrate, the prescribed authority or the appellate or revising authority shall, for the purposes of holding any inquiry or hearing any appeal or revision under the Act, shall have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matters, namely (a) the power to dismiss an application, appeal or revision for default and to restore it for sufficient cause; (b) the power to proceed ex parte and to set aside, for sufficient cause, an order passed ex parte; (c) the power to award costs and special costs to any successful party against an unsuccessful party; (d) the power to allow amendment of an application, memorandum of appeal or revision; (e) the power to consolidate two or more cases of eviction by the same landlord against different tenants; (f) the power referred to in Sections 154 and 152 of the Code of Civil Procedure, 1908 to make any order for the ends of justice or to prevent the abuse of the process of the authority concerned. 67. Learned counsel for the applicant has then submitted that the Rent Control and Eviction Officer as well as the revisional authority erred in law in not permitting the petitioner to produce certain documents. It is a settled law that the courts even at the stage of revision can permit the party to produce documentary evidence. 68. In the case of Babu Ram v. Additional District Judge, Dehradun (1983) 1 ARC 15 it was held that a Court under Section 25 of the Provincial Small Cause Act can take into account subsequent or new facts which had emerged since the giving of the decision by the Judge of the Small Causes. The powers under Section 18 cannot be limited and the revisional court while exercising such powers has ample authority to admit. 69. Similar view was taken in the case of Ram Kishan Mtttal v. Ram Nivas and others, 1984 (2) ARC 622. There are other decisions to the same effect. 70. The powers under Section 18 cannot be limited and the revisional court while exercising such powers has ample authority to admit. 69. Similar view was taken in the case of Ram Kishan Mtttal v. Ram Nivas and others, 1984 (2) ARC 622. There are other decisions to the same effect. 70. In view of the above the petition deserves to be allowed and the order dated 2251986 passed by respondent No. 1 rejecting the revision and the order dated 1541986 rejecting the application of the petitioner for taking the documents on the record and the order of the respondent No. 2, dated 331986 releasing the shop in dispute in favour of the respondent and the order, dated 28121985 declaring the vacancy in the shop in dispute deserve to be quashed. There was no vacancy in the eye of law and as such the Rent Control and Eviction Officer had no jurisdiction to declare the shop in question to be vacant and then to release the same. 71. In the result the petition succeeds and is hereby allowed. The orders dated 28121985 declaring the vacancy, the order dated 331986 releasing the shop in dispute in favour of respondent No. 3, similarly the order dated 1541986 rejecting the application of the petitioner for taking the documents on record and the order dated 2251986 rejecting the revision by the respondent No. 2 are also hereby quashed. The shop to question cannot be deemed to be vacant. Costs on parties.