A.N. Dikshita, J. - (1.) THE instant writ petition under Article 226 of the Constitution of India has been filed by the Petitioner for quashing the order dated 15 -10 -1980 passed by IInd Additional District Judge, Ghazipur and the order dated 30 -10 -1978 passed by Munsif Mohammadabad, Ghazipur (Annexure Nos. 2 and 1 respectively to the writ petition).
(2.) BRIEFLY stated that facts are as under; The Petitioner was a tenant of the portion in dispute which is owned by Respondent No. 3. A suit was filed for the eviction of the Petitioner by the father of Respondent No. 3 prior to the commencement of Act XIII of 1972 on the allegation that U.P. Act No. III of 1947 was not applicable to the building. A notice of demand and rent terminating the tenancy was served upon the Petitioner and on the failure of the Petitioner to comply with the requirement of the notice a suit was filed for eviction and recovery of arrears of rent. The suit was contested by the Petitioner. The trial court decreed the suit. Aggrieved by the judgment and order passed by Respondent No. 2 decreeing the suit a revision was preferred to the Court of District Judge which was transferred to the Court of II Addl. District Judge, Ghazipur for disposal according to law. The revision was also dismissed. Feeling aggrieved by the said judgment and order dismissing the revision, instant petition under Article 226 of the Constitution has been filed against the said judgments and order passed by Respondent No. 2 and 1 respectively. Counsel for the parties have been heard at length. Counsel for the Petitioner submitted that Respondent No. 2 in decreeing the suit ignored that the notice under Section 106 of Transfer of Property Act was not served on Petitioner. Further the notice was not proved in the court. There is no merit in the contention. In the instant suit written statement was filed by the Petitioner and in para 8 it has been clearly admitted that the notice was served on the Petitioner. It has further been urged that a legal error has been committed in the instant case as there was no evidence of formal proof of notice and hence such a finding can be interfered with though it has not been disputed that any misappreciation of evidence would only be deemed to be a finding of fact requiring no interference. As has been shown above the notice was served on the Petitioner. Moreover, the notice was adequately proved and the Respondent No. 3 had proved the signatures of his father and uncle who were the authors of the notice and as such it cannot be said that there was no evidence on record. The counsel for the Petitioner then urged that in the instant case the contract of tenancy was not proved between the parties. Annexure -6 to the writ petition is the rent note which clearly shows that there was a concluded contract of tenancy and as such the submission being not merited deserves to be rejected. Lastly, the counsel for the Petitioner submitted that the trial court as well as the revisional court erred in not granting the protection provided to the Petitioner as contemplated under Sections 39 and 40 of the Act No. XIII of 1972. In the instant case it is admitted that on the date of the commencement of Act XIII of 1972 the suit was pending. It would be expedient to extract the provisions of Sections 39 and 40 for a fair appraisal of this aspect which are reproduced below: 39. Pending suits for eviction relating to buildings brought under regulation for the first time: - -In any suit for eviction of a tenant from any building to which the old Act did not apply, pending on the date of commencement of this Act, where the tenant within one month from such date of commencement or from the date of his knowledge of the pendency of the suit, whichever be later, deposits in the court before which the suit is pending, the entire amount of rent and damages for use and occupation (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord's full cost of the suit, no decree for eviction shall be passed except on any of the grounds mentioned in the proviso to Sub -section (1) of Clauses (h) to (g) of Sub -section (2) of Section 20, and the parties shall be entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary: Provided that a tenant the rent payable by whom does not exceed twenty five rupees per month need not deposit any interest as aforesaid: 40. Pending appeals or revisions in suits for eviction relating to buildings brought under regulation for the first time. Where an appeal or revision arising out of a suit for eviction of a tenant from any building to which the old Act did not apply is pending on the date of commencement of this Act, it shall be disposed of in accordance with the provisions of Section 39, which shall mutatis mutandis apply.
(3.) SECTION 39 provides for protection being granted where the suit is pending while Section 40 provides for such benefit in a case of revision or appeal pending. The statutory requirement of the said provision is that the benefit can be given to a person who files an application within the time therein provided i.e. 30 days. Admittedly no application was filed under Section 39 of the said Act in the suit which was pending when the Act came into force. The counsel for the Petitioner has submitted that an application was filed under Section 40 of the Act before the revisional court. The suit was decreed as early as 30 -10 -1978 and as shown above such a protection was not claimed. The contention of the Petitioner is that the delay in filing the application was liable to be condoned as Section 8 of the Limitation Act would entitle him to claim condonation of delay and the Respondent No. 1 erred in rejecting the application without applying the provision of Section 5 of the Limitation Act. The contention is wholly misconceived and utterly untenable and as such deserves to be rejected. It is the case of the Petitioner that such an application for claiming the benefit of Section 40 was filed though after a lapse of about 8 years of the enforcement of Act XIII of 1972 and the delay occasioned was sought to be condoned as per the postulates of Section 5 of Indian Limitation Act. The period provided for claiming the benefit under the provisions of Section 39 as well as Section 40 of the said Act is only 30 days during which period the persons sought to be evicted may deposit the entire amount of arrears including damages and costs of the suit etc. It would be contrary to the intention of the Legislature to extend such time by seeking recourse to the provisions of Section 5 of Limitation Act. However, it may further be seen that there is nothing on record to show that any amount was deposited. In view of the above discussions it cannot be said that Respondents No. 2 and 1 have committed any illegality so as to entitle the Petitioner to claim interference under Article 226 of the Constitution. The petition has no force and deserves to be dismissed.;