Sibghat Ullah Khan, J. - (1.) LIST revised. No one appears for the tenant -respondent No. 3. Heard Sri B.N. Narain learned Counsel for the petitioner. Substitution application said to have been filed on 22.1.2003 is not on record. Counsel for the petitioner had supplied a duplicate copy of the same, which is taken on record. The application is allowed. The name of sole petitioner Smt. Prakash Rani alias Prakashwati is deleted from the array of parties and in her place the names of her heirs and legal representatives as mentioned in para 2 of the affidavit filed in support of the substitution application are substituted.
(2.) ORIGINAL petitioner Shrimati Prakash Rani alias Prakashwati since deceased and survived by L.Rs. filed SCC Suit No. 83 of 1986 against Jai Prakash tenant -respondent No. 3 before J.S.C.C./Additional Civil Judge, Bulandshahr. In the suit it was stated that U.P. Act No. 13 of 1972 was not applicable to the building in dispute and that tenancy of respondent No. 3 had been terminated through notice. It was further stated that tenant was also defaulter and in the notice of termination of tenancy demand of rent was also made. The Trial Court on 25.4.1990 decreed the suit for eviction. Suit for recovery of arrears of rent was decreed only from 1.4.1985 @ Rs. 60/ - per month. Landlord had asserted that rate of rent was Rs. 150/ - per month. However, tenant asserted that it was only Rs. 60/ - per month. Trial Court found the version of the tenant to be correct in this regard. Against the judgment and decree dated 25.4.1990 two revisions were filed being SCC Revision No. 19 of 1990 by the tenant and SCC Revision No. 20 of 1990 by landlord -petitioner. VI A.D.J., Bulandshahr through judgment and order dated 20.11.1990 dismissed both the revisions. Hence, this writ petition (Revisional Court passed separate orders on both the revisions). So far as the order of Revisional Court in landlady's revision (SCC No. 20 of 1990) is concerned, I do not find any such error which may warrant interference in exercise of writ jurisdiction. The said order is, therefore confirmed. Both the Courts below have recorded finding of fact that rate of rent was Rs. 60/ - per month, as alleged by the tenant and not Rs. 150/ - per month as alleged by the landlady.
(3.) HOWEVER , as far as the judgment of the Revisional Court in tenant's revision (SCC Revision No. 19 of 1990) is concerned, I find that the said judgment is clearly erroneous in law. The Revisional Court in para 10 of its judgment clearly held that there was absolutely no dispute that provisions of U.P. Act No. 13 of 1972 were not applicable on the building in dispute. However, the Revisional Court has held that as at the time of giving notice tenant was not defaulter, hence his tenancy could not be terminated. This view is clearly erroneous in law. If U.P. Act No. 13 of 1972 is not applicable, then suit for eviction is liable to be decreed after termination of tenancy, without there being any default in payment of rent or any other ground. For termination of tenancy it is not at all necessary that the tenant must be defaulter. Month to month tenancy is terminable by one month's notice under section 106 of the Transfer of Property Act. It has not been found by the Revisional Court that there was any agreement in between the parties against termination of tenancy by one month's notice.;