S.M. Khan, J. - (1.) Lalta Prasad the original landlord petitioner since deceased and survived by legal representatives instituted eviction suit against tenant respondent No. 3, Dr Pramod Jain before JSCC / I Munsif, Bulandshahr in the form of SCC suit No. 13 of 1979. Building in dispute is a garage of which respondent No. 3 is the tenant. In the plaint, it was stated that building in dispute was constructed in the year 1970-71 hence U.P Act No. 13 of 1972 was not applicable thereupon (by virtue of Section 2(2) of the Act, the Act is not applicable for a period of 10 years from the date of construction of a building, if it was constructed prior to April 1985). The tenant filed written statement and denied the allegation of the landlord in respect of date of construction. Tenant asserted that building was more than 10 years on the date of filing of the suit hence U.P Act No. 13 of 1972 was applicable thereupon. During the pendency of suit tenant filed an application on 2.5.1980 to the effect that even if allegation of plaintiff that building was constructed in April 1970 was taken to be correct 10 years period had expired and tenant was entitled to the benefit of Section 39 of U.P Act No. 13 of 1972. According to Section 39 of the Act, if a suit for eviction of tenant was pending on the date of commencement of the said Act then tenant was entitled to the protection of the Act on the condition of depositing the entire arrears of rent. JSCC, Bulandshahr through order dated 15.9.1980, held that the question of benefit of Section 39 of the Act would be decided after evidence was adduced alongwith final decision of the suit. Against order dated 15.9.1980, tenant filed SCC Revision No. 111 of 1980. IV Additional District Judge, Bulandshahr allowed the revision on 20.11.1980 and directed the trial court to decide the tenant's application in respect of applicability of Section 39 of the Act first and not after final hearing of the suit.
(2.) After remand the trial court/ JSCC, Bulandshahr decided the entire suit on 19.9.1981. Trial court held that the revisional court in its judgment and order dated 20.11.1980 had already decided that U.P Act No. 13 of 1972 was applicable on the building in dispute hence it was no more open to him to decide the said question again and the said order was binding upon the parties. Thereafter trial court held that tenant had complied with the provisions of Section 39 of the Act hence suit was liable to be dismissed as the entire arrears of rent along with interest and cost of the suit had been deposited by the tenant on the first date of hearing and he was entitled to the benefit of Section 20(4) of the Act. The trial court therefore through judgment and decreed dated 19.9.1981, dismissed the suit for eviction and permitted the landlord plaintiff to withdraw the amount deposited by the tenant.
(3.) Against the said judgment and decree landlord filed SCC Revision No. 77 of 1982. In the revision after judgment was reserved, tenant filed an application seeking amendment in his written statement to the effect that he was entitled to the benefit of Section 39 of the Act. Amendment application was allowed on 5.10.1985. Thereafter revision was dismissed on 18.1.1986 by I A.D.J, Bulandshahr hence this writ petition by the landlord.;