S. U. Khan, J. - (1.) -This writ petition was earlier dismissed by Hon'ble P. N. Nag, J., by the following order : "This case relates to ejectment from a shop in dispute between private parties. The impugned order in revision arises out of a suit. The Code of Civil Procedure provides for sufficient remedies, which the petitioner has availed of. The writ petition is not maintainable. It is accordingly dismissed. 10.11.1994."
(2.) AGAINST the said judgment S.L.P. was filed. The Supreme Court by order dated 9.9.1996, passed in S.L.P. 9597 of 1995 (C.A. No. 11898 of 1996) reversed the said order holding that as revision had been filed before District Judge and not before the High Court, hence in such a situation writ petition should have been disposed of on merits. After setting aside the said impugned order the matter was remitted to the High Court to hear the writ petition and dispose of on merit. This writ petition has been filed by the landlord. Landlord filed suit for ejectment against tenant/ respondent No. 3 on the ground of default from the shop which is in tenancy occupation of the petitioner. Prior to enforcement of U. P. Act No. 13 of 1972 rate of rent was Rs. 25 per month. In the aforesaid Act it was provided that in certain contingencies rent could be enhanced by 25% through notice given by landlord within three months from the enforcement of the Act, i.e., 5.7.1972. From August, 1972 under agreement the rent was enhanced by 25%, i.e., to Rs. 31.25 per month. Thereafter landlord gave notice on 20.9.1972 to enhance the rent further by 25% amounting to Rs. 39.06 per month under Section 5 of the aforesaid Act. In the suit tenant pleaded that as the rent had been enhanced by mutual agreement by 25% w.e.f. August, 1972 and that was in view of provisions of the U. P. Act No. 13 of 1972 permitting enhancement of rent by 25% hence it was not permissible for the landlord to further enhance the rent by 25%. The trial court (J.S.C.C., Bareilly), accepted the contention of the landlord and decreed the suit (S.C.C. Suit No. 234 of 1979, through judgment and decree dated 29.2.1980). It is not disputed that in case it is held that the valid rate of rent was Rs. 31.25 when the suit was filed then the suit for ejectment could not be decreed on the ground of default. The tenant/respondent No. 3 filed revision against the judgment and decree passed by trial court/J.S.C.C. The revision being Civil Revision No. 82 of 1980 was allowed by VIIth Additional District Judge, Bareilly through judgment and order dated 18.2.1981, Annexure-2 to the writ petition. (In Annexure-2 which is typed copy date is not mentioned. The date of the said judgment is given in prayer-I as 18.2.1981). This writ petition is directed against the aforesaid judgment and order passed by revisional court. The contention of the learned counsel for the landlord/petitioner is that the combined reading of Sections 3 (k), 5, 8 of the Act and Section 2 (f) of U. P. (Temporary) Control of Rent and Eviction Act, 1947, which has been reproduced in Schedule to U. P. Act No. 13 of 1972 makes it permissible for the landlord to enhance the rent by adding 25% twice. According to the said argument as the annual value of the building in the municipal assessment of the municipal board concerned was Rs. 25 per month (Rs. 300 per year), hence by virtue of Section 2 (f) of the old Act reasonable annual rent will be 300 + 25% of 300, i.e., 375 and standard rent by virtue of Section 3 (k) (i) (a) of the new Act (U. P. Act No. 13 of 1972) will be 375+25% of 375 per year i.e., Rs. 39.06 per month. The argument of learned counsel for the petitioner is quite correct. However, it cannot be applied to the facts of the case as there is no evidence on record that the building in dispute was constructed before 1.7.1946. If the building is constructed after 1.7.1946 then there cannot be any "reasonable annual rent" as defined under Section 2 (f) of old Act, 1947. In such situation the only provision which is attracted is Section 3 (k) (ii), i.e., assessed letting value which at the relevant time was Rs. 300 per year, i.e., Rs. 25 per month. However, as the rent had been enhanced to Rs. 31.25 by mutual agreement w.e.f. August, 1972, hence since then it was the rent which was required to be paid by the tenant.
(3.) LEARNED counsel has cited an authority in 1981 ARC 617. The said authority is not applicable as in the said authority the question of construction being pre or post 1.7.1946 was not involved. Accordingly, there is no merit in this writ petition and it is dismissed.;