- (1.) THE petitioner was a tenant of certain urban building against whom an application for eviction under S. 21, U. P. Act No. 13 of 1972, was allowed on 17-5-1975. Before the said order of eviction could be executed U. P. Act No. 28 of 1976 came into force. This Act made two provisions which are relevant to this case. Firstly S. 21 (8) was inserted. Under that sub-section where the State Government or a local authority or a public sector corporation or a recognised educational institution was a tenant such tenant could not be evicted under S. 21 (1) (a) instead the landlord could make an application for enhancement of rent to a sum equivalent to one-twelfth of ten per cent of the market value of the building. This enhanced rent was revisable after every five years. In the light of this provision, certain transitory provisions were also made in S. 26 of the amending Act. Sub-sec. (3) of S. 26, U. P. Act No. 28 of 1976, lays down that where an order of eviction under S. 21 (1) (a) of U. P. Act No. 13 of 1972 has already been passed against a tenant falling in the aforesaid categories before the commencement of the amending Act but such tenant has not actually been evicted and continues to be in possession of the building at such commencement then the order of eviction shall, on the tenant's application under sub-sec. (4), stand discharged and no such order of eviction shall be executed. Sub-sec. (4) lays down that every such application should be made within two months from the date of commencement of the amending Act and the tenant shall make an unconditional offer therein to pay rent at the rate of one-twelfth of ten per cent of the market value of the building under tenancy and thereupon the Prescribed Authority shall determine the revised rent accordingly, and such revised rent shall be payable with effect from the date of the order referred to in sub-sec. (3 ).
(2.) THE petitioner, contending that the building had been let out to a recognised educational institution, which contention is controverted by the landlord-opposite-party, made an application under S. 26 (4), U. P. Act No. 28 of 1976, within two months from the commencement of that Act. In the proceedings that commenced on this application both parties filed reports of valuers in order to prove the market value of the building. THE petitioner earlier filed a report of the valuer in which the market value was based on the rates of 1977 or 1978-79, it is not quite, clear which. Subsequently the petitioner sought to submit a revised report of, the valuer on the basis of the rates of 1976. This application of the petitioner is Annexure No. 5 to the petition. It was contended by the petitioner that the relevant date with reference to which the market value was to be determined was 1976 and not any subsequent year. This application has been rejected by the Prescribed Authority by its order D/- 17-12-1981. (Annexure No. 6 ). Aggrieved thereby the petitioner has come to this Court. As mentioned earlier it is still an open question as to whether the petitioner is at all entitled to maintain an application under S. 26 (4) of U. P. Act No. 28 of 1976. That question would be determined by the Prescribed Authority before passing final orders in the case. The discussion hereinafter is based on the assumption that the application is maintainable, but this would not prejudice the consideration of that question on merits by the Prescribed Authority. Assuming that the judgment-debtor-tenant was a recognised educational institution, and assuming therefore, that an application under S. 26 (4) did lie, the question arises as to what is the relevant date with reference to which the market value has to be determined for purposes of that sub-section. It has been contended by the learned counsel for the opposite-party Sri Ashok Nigam that the relevant date would be the date of the order of determination of revised rent under S. 26 (1), while according to Sri S. C. Misra the learned counsel for the petitioner the relevant date would be the date of the tenant's application under that sub-section Sri Nigam has further contended that the order of eviction does not stand discharged until an order determining the revised rate is passed by the Prescribed Authority under sub-sec. (4) of S. 26.
(3.) THE words of sub-sec. (3) of S. 26 indicate that the order of eviction shall "stand discharged" on the tenant's application to the Prescribed Authority in accordance with sub-sec. (4 ). THE words "stand discharged" indicate that the discharge of the order of eviction is automatic. It has been contended by Sri Nigam that the order of eviction cannot stand automatically discharged because the application purported to be given under S. 26 (4) may ultimately be found to be misconceived and not maintainable. True if it is that the application may ultimately be found to be not maintainable. When such finding is given by the prescribed Authority then it would mean that the order of eviction did not at any earlier point of time stand discharged. If however, ultimately it is found that the application was maintainable then the automatic discharge would date back to the date of the tenant's application under sub-section (4) of S. 26. By way of analogy it may be pointed out that under O. XXII, R. 4 (3), C. P. C. , if an application for substitution is made within time the suit automatically abates as against the deceased defendant. Although abatement is automatic yet the question whether such abatement has at all taken place may certainly be the subject of a specific order of the court. As the order of eviction stands discharged on the tenant's application it means that the discharge will date back on the date of a valid application of the tenant under S. 26 (4 ). However, the enhanced rent will be effective from the date of the order referred to in sub-section (3 ). The order referred to in sub- sec. (3) is an order of eviction under S. 21 (1) (a) of the principal Act. Thus if the Prescribed Authority finds that the tenant's application under S. 26 (4) is maintainable, and the order of eviction was to be treated as standing discharged, the revised rent as determined by it shall be payable with effect from the date of the order of eviction under S. 21 (1) (a) of the principal Act. Such being the position the market value of the building which has to be computed for purposes of determining the revised rent must also be determined with reference to the date of the order of eviction.;