S.U.KHAN, J. - (1.) THIS writ petition has been filed by the tenant against whom suit for possession and recovery of arrears of rent filed by plaintiff/respondents (S.C.C. Suit No. 279 of 1987) was decreed by Addl. J.S.C.C., Allahabad through judgment and decree dated 6 -8 -1998. Petitioner filed revision against the same being S.C.C. Revision No. 1099/98. The said revision has been dismissed by VII Addl. District Judge, Allahabad through judgment and order dated 25 -11 -2002. This writ petition is directed against the aforesaid judgment.
(2.) BOTH the Courts below have held that building was constructed in the year 1978 hence provisions of U.P. Act No. 13 of 1972 were not applicable as the suit had been filed within 9 years from the date of construction. The suit was filed after terminating the tenancy of the tenant through notice under Section 106 T.P. Act. The findings with regard to date/time of construction recorded by the Courts below are basically finding of fact; which do not suffer from any such illegality, which may warrant interference in exercise of writ jurisdiction. Learned counsel for the petitioner has also not seriously challenged those findings. The learned counsel for the petitioner has mainly argued out that even though U.P. Act No. 13 of 1972 was not applicable, however, tenant/petitioner could not be evicted as in terms of Section 114 T.P. Act at the hearing of the suit, he deposited the entire rent alongwith interest and cost of the suit. In my opinion the argument of the learned counsel for the petitioner is misconceived. Section 114 T.P. Act states, Where the lease of immovable property has been determined by forfeiture for non payment of rent. In the instant case rent note was executed by the tenant. There were no provisions in the rent note that tenancy would determine by forfeiture of non -payment of rent for certain period. The authority of the Supreme Court reported in 2002 ACJ 1453 is cited by learned counsel for the petitioner in support of his contention. As far as the said authority is concerned it dealt with Punjab Rent Control Act. The Supreme Court while pointing out a peculiar lacuna of the said Act referred to Section 114 of T.P. Act. Fortunately Section 20(4) of U.P. Rent Control Act (U.P. Act No. 13 of 1972) does not contain such lacuna. The Supreme Court has not held that where rent control act does not apply and where the lease is not determined by forfeiture for non -payment of rent Section 114 of T.P. Act will apply. The Supreme Court has held in para 20, the discretion conferred by Section 114 of T.P. Act is of wide amplitude guided by principles of justice equity and good conscience and the Court would examine the conduct of the parties. The Supreme Court referred to Section 114 T.P. Act for the purpose to show that under the said section Court had discretion to extend the time for deposit and to condone minor short fall in the deposit, hence the same power must be available to rent controller under the relevant provision of Punjab Rent Act.
(3.) LEARNED counsel for the petitioner has cited another authority of this Court reported in Surjit Singh v. A.D.J. 1993 (2) ARC 470. The said authority supports the contention of the learned counsel for the petitioner. However, in my opinion, it does not lay down correct law and is per -incuriam. Paras 6 and 7 of the said authority is quoted below: - (6) Sri Rajesh Tandon, learned counsel for the petitioner contended that once the revisional Court was (sic) upheld the finding that the U.P. Act No. 13 of 1972 is not applicable then the provisions of Section 114 of the Transfer of Property Act become applicable automatically. In support of this contention he has relied upon a decision reported in 1989 SCFBRC 500, Arjun Khiamal Makhijani v. Jamandas C. Tuliani (also reported in AIR 1989 SC 1599). According to it Section 114 of Transfer of Property Act applies to that case where a lease of immovable property has been determined by forfeiture for non - payment of rent. (7) Applying the same principle in the instant case I am of the view that since the U.P. Act No. 13 of 1972 is not applicable the petitioner was entitled for the relief as contemplated under Section 114 of the Transfer of Property Act. ;