- (1.) THE question which falls for determination in this petition is whether a contract of tenancy entered into after the coming into force of the U. P. Act No. 13 of 1972 is enforceable at law at the instance of the lessor and a decree for ejectment and rent can be passed against the lessee in respect of an accommodation governed by the aforesaid Act. Both the courts below have answered this question in the negative relying on the provisions of the aforesaid enactment expressly prohibiting letting out of an accommodation otherwise than under an order of allotment. THE petitioner, who is the lessor, contends that the view taken by the courts below is wrong. THE submission is that the contract even if it does not bind the authorities, is fully binding upon the parties to it.
(2.) HAVING heard learned counsel for the parties, I find no merit in the above contention. In my opinion the courts below have rightly refused to grant any relief to the plaintiff. I proceed to give my reasons below. Before I do that the relevant facts which lie within a narrow compass may be set out in brief. The suit giving rise to this petition was filed by the petitioner being original suit No. 398 of 1976 in the court of the learned Judge, Small Cause, Meerut for ejectment of the defendant No. 1, who is arrayed here as respondent No. 3, as well as for recovery of arrears of rent and mesne profits. The suit was filed on the allegation that the defendant had sublet the accommodation in dispute to the defendant No. 2. The defence of the defendant No. 1 was that the defendant No. 2 was his own brother. There was no subletting. In any case the contract of tenancy set up by the plaintiff was void and unenforceable at law, having been entered into in breach and disregard of express statutory prohibition contained in the aforesaid Act. The defendant No. 1 filed an application before the trial court for disposing of the question as to the maintainability of the suit as a preliminary issue. The application was filed on the allegation that the accommodation had been let out to the defendant No. 1 in the year 1975 i. e. at a time when U. P. Act No. 13 of 1972 had already come into operation. Under the said Act under S. 11 thereof there was an express prohibition against letting of any building except in pursuance of an order of allotment issued under Section 16. Under S. 13 again, there was a complete bar to any person occupying an accommodation in any capacity whatsoever otherwise than under an order of allotment or release under S. 16, S. 13 further provides that if a person so purported to occupy he would be deemed to be an unauthorised occupant of such a building and would also be liable to be prosecuted under S. 31 of the Act. In view of these provisions the contract of tenancy relied on by the plaintiff in support of his claim for ejectment and rent was entirely unenforceable at law.
(3.) THE aforesaid application was contested by the petitioner. THE preliminary issue was, however, answered against the petitioner by the learned Judge Small Cause Court by an order dated 2-8-1979 by which he not only upheld the preliminary objection but also dismissed the suit itself as not maintainable. Aggrieved, the petitioner filed a revision under Section 25 of the Provincial Small Cause Courts Act, but without any success. The revisional court agreed with the trial court on the question whether the suit was maintainable.;