V. K. Khanna, A.C.J. - (1.) THE present writ petition, which was heard by a learned Single Judge, has been referred to a Division Bench by the order of Honourable the Chief Justice, as the learned Single Judge had taken a view contrary to the view taken by another learned Single Judge in Civil Misc. Writ No. 16968 of 1988 Shrimati Indra Pathak v. Ilnd Additional District Judge, Allahabad decided on 25th November, 1988.
(2.) THE brief facts for the purposes of deciding the present writ petition are that respondent no. 3, Shrimati Meera Devi, filed suit no. 1038 of 1975 in the Court of Judge Small Causes Agra far the relief of arrears of rent and ejectment of the petitioner on the ground that the shop in question was not within the ambit of U. P. Act No. 13 of 1972 (hereinafter referred to as the "Act") and that the petitioner was defaulter in the payment of rent and was thus liable to ejectment as his tenancy has been terminated under section 106 of the Transfer of Property Act by giving a valid notice. The aforesaid suit was contested by the tenant-petitioner Ram Prakash on the ground that the suit was within the ambit of the Act and in the absence of statutory grounds under section 20 of the Act the suit was not maintainable. It was further pleaded that shop in question was let out to the petitioner for manufacturing purposes and, therefore, notice was also invalid. The Judge, Small Causes Court bearing the suit decreed the same. The tenant-petitioner thereafter filed Civil Revision No. 265 of 1978 under section 25 of the Provincial Small Causes Court Act which too was dismissed. The present writ petition has been filed challenging the aforesaid two orders passed by the Judge, Small Causes Court and the Revisional Court.
(3.) THE contentions were raised before the learned Single Judge, the first being that the Act became applicable to the premises in dispute in the year 1980 and consequently the suit for ejectment could not have been decreed as it was barred under section 20 of the Act. THE second contention was that the petitioner was entitled to the benefit of Section 39 of the Act and the revisional court has erred in not going into that question. Learned counsel for both the parties relied upon the following five decisions of Honourable Supreme Court in support of their respective contentions : (i) Om Prakash Gupta v. Dig Vijendrapal Gupta, 1982 (1) ARC 391 : (ii) Vineed Kumar v. Mangal Sain Wadhere, 1984 (1) ARC 265 : (iii) Nand Kishore Marwah v. Smt. Samundari Devi, 1987 (2) ARC 361 : (iv) Atma Ram Mittal v. Ishwar Singh Punia, 1988 (2) ARC 557 : and (v) Shiv Kumar v. Jawar Lal Verma, 1988 (2) ARC 465. The learned Single Judge after consideration of the cases mentioned above came to the conclusion that the controversy is covered by the latest decision of the Supreme Court in the case of Atma Ram Mittal (supra) and, therefore, it was held that the pendency of the litigation will not effect the right of the parties which existed on the date of the suit and in case the premises which was not 10 years old on the date of the suit and was exempt from the operation of the Act, can not be governed by the provisions of the Act if 10 years expired during the pendency of the litigation. With regard to the question of applicability of the provisions of Section 39 of the Act, the learned Single Judge held that the latest case of the Supreme Court in the case of Nand Kishor Mawah (supra) will apply and that section 39 of the Act would only apply to those suits which were pending on 15th July, 1972. It was held that in the case of Shiv Kumar (Supra) the question was not specifically decided but was left open and section 39 of the Act was discussed as an alternative argument raised on behalf of the appellant before the Supreme Court. It was held by the learned Single Judge that the contentions raised by the learned counsel for the petitioner have thus no substance. The learned Single Judge, however, in view of the decision of another learned Single Judge in the case of Shrimati Indra Pathak (supra), who took a contrary view, did not finally adjudicate the petition but made an order that the papers may be laid before Honourable the Chief Justice for constituting a larger Bench for decision of the writ petition.;