R. M. Sahai, J. - (1.) COULD decree for eviction be passed under Act XIII of 1972 (herein referred as the Act) in a suit filed after determining tenancy under Section 106 of Transfer of Property Act is the short question that arises for consideration in this petition.
(2.) FROM the plaint, copy of which has been filed as annexure to the writ petition, it is apparent that opposite party claimed that Act XIII of 1972 was not applicable. Even in evidence the date of first assessment disclosed was 1971. The suit therefore filed in December 1978 was not governed by the new Act. The trial court however held otherwise on the then prevailing view in Ratan Lal Singhal v. Bharat Dev, 1979 SC 595. But once it was held that the Act applied the suit could not have been decreed as no notice had been given under sub-section (2) of Section 20 of the Act. Sub-section (1) of Section 20 of the Act specifically bars filing of any suit for eviction of a tenant by determination of tenancy either by influx of time or expiration of notice to quit. The only ground on which petitioner could be evicted under Act XIII of 1972 was available under sub-section (2) of Section 20 of the Act. Under it the suit could be filed after determination of the tenancy only if the petitioner was in arrears of rent for not less than four months and has failed to pay the same to the landlord within one month from the date of service upon him of notice of demand, (clause (a) of sub-section (2) of Section 20). It may be that on facts found petitioner was in arrears of four months on the date of suit but that alone was not sufficient as petitioner should not only have been in arrears of rent for not less than four months but should have failed to pay the same to the opposite party wihin one month from the date of service upon him of a notice of demand. No such notice was served on petitioner. The question of failure to pay therefore did not arise. Benefit of Section 39 of Act XIII was not extended to petitioner as, according to revising authority, it was her claim that building was governed by U. P. Act XIII of 1972 was accepted whereas this Section applied to building to which the provision become applicable after filing of the suit. Although the trial court held that proviso of U. P. Act XIII of 1972 were applicable on strength of Ratan Lal Singhal's case but in view of subsequent decision by the Full Bench and affirmed by Supreme Court it stands established that the provisions applied to only those buildings which had completed ten years from the date of completion. It having been found that building was assessed for the first time in October 1970 it completed ten years during pendency of revision and the revising authority committed error of jurisdiction in refusing to extend benefit of section 39, In the result this petition succeeds and is allowed. The order passed by the two courts below granting decree for ejectment is quashed. Parties shall bear their own costs. Petition allowed.;