R.M. Sahai, J. - (1.) IN these two revisions, one filed by tenant for setting aside decree for ejectment and arrears of rent and other filed by landlord for enhancing arrears, primary controversy that arose for consideration is if the suit filed under Sub -section (2) Clause (e) of Section 20 of U.P. Act No. XIII of 1972 could be decreed even if it was found that sub -letting was done prior to commencement of the Act and was in respect of a building to which the old Rent Control Act did not apply.
(2.) MATERIAL allegations on which the suit was filed were that M/s. Khanna Brothers a partnership firm was tenant of premises in dispute at Rs. 400/ - per month, besides water -tax, drainage -tax and electricity charges. In August 1978 its partner sub -let premises illegally without obtaining permission of the District Magistrate. And as the premises were constructed in 1967 provisions of Act XIII of 1972 were applicable, therefore, a notice of demand for arrears of rent since June 1978 and notice for termination of tenancy was served on 8th September 1978. Landlord further claimed water -tax at the rate of Rs. 6 -1/4 per cent, drainage tax at Rs. 1 -14 percent and electricity dues at rate of Rs. 100/ -per month with effect from 9th November 1978 to 15th December 1979. In reply it was pleaded that three partners out of six of Khanna Brothers entered into partnership with two others in the name of ' Plastic Fabrication Industries' and it came into existence in January 1975 but closed in June 1977. Allegations of sub -letting were denied. Claim of water -tax and Drainage tax was also denied. Regarding electricity dues it was claimed that meter was installed and payment was regularly made on consumption recorded in the meter. Plea of res -judicata and Order 2 Rule 2 Code of Civil Procedure was also raised, as a suit filed in 1976 for ejectment and arrears without any pleading of sub -letting was dismissed. Trial Court repelled claim of res -judicata. On sub -letting it was found to have been established that as a result of partnership agreement premises were sub -let in 1975 without consent of landlord or permission of the District Magistrate. In respect of electricity charges trial court held that the claim prior to 9 -7 -1975 was barred by time and after 9th November 1975 the charges having been paid in accordance with sub -meter the landlord was not entitled to any decree. Decree for drainage and water tax was granted as it was liable to be paid under the Act and tenant could not lead any evidence of its payment.
(3.) ALTHOUGH finding of sub -letting was challenged but it is unnecessary to examine it, as submission of Learned Counsel for tenant on the question of law appears to be well founded. On fact admitted that building was constructed in 1967 coupled with finding that premises were sub -let in 1975, the question is if the suit could be decreed under Section 20(2)(e) of the Act. For this it is necessary to extract material part of Section 20. It reads as under: Section 20(2): A suit for eviction of a tenant from a building after determination of his tenancy may be instituted on one or more of the following grounds, namely - (e) that the tenant has sub -let in contravention of Section 25 or as the case may be, of the old Act the whole or any part of the building. This clause applies in two situations, one after tenant had sub -let in contravention of Section 25 or sub -letting was under the old Act of the whole or part of the building. As the building was constructed in 1967 old Act which was applicable to constructions till 1952 did not apply. What has to be seen, therefore, is if the sub -letting was in contravention of Section 25 of the Act, which reads as under: Section 25. Prohibition on sub -letting (1) No tenant shall sub -let the whole of the building under his tenancy. (2) The tenant may with the permission in writing of the landlord and of the District Magistrate, sub -let a part of the building. Explanation: - For the purpose of this section - (i) where the tenant ceases, within the meaning of Clause (b) of Sub -section (1) or Sub -section (2) of Section 12, to occupy the building or any part thereof he shall be deemed to have sub -let that building or part; (ii) lodging a person in a hotel or a lodging house shall not amount to sub -letting. Sub -section (1) is obviously prospective in nature. It prohibits a tenant from sub -letting whole of the building. There is nothing either in Sub -section (1) or (2) which may indicate that these provisions were to apply to sub -letting which had taken place before. However if language or the dominant intention of the Act so demands it can be construed so as to have a retrospective operation. As is clear from the section itself it does not expressly attempt to deal with past. The Act itself is not retrospective in nature. It extends to whole of the State and to every building which had completed ten years from the date its construction was completed. Section 4 prohibits a landlord or tenant from accepting any premium from tenant or sub -tenant. It obviously operates in present. Chapter III of Act is most important Chapter, It regulates letting, None of the Sections apply to past transaction. Of course about Section 12 there is divergence of opinion which shall be considered later. Chapter IV deals with eviction, release etc. Section 20 mentions various grounds for eviction of a tenant, but except second part of the Clause (e) it does not contemplate any situation in which cause of action might have accrued prior to commencement of the Act. Therefore, wherever the Act visualised that provisions of this Act may apply retrospectively, it has made specific provisions for it. The language also indicates that provision is not retrospective. The use of present tense is usually indicative of its prospectively. Section 25 satisfies this test in full. But even then a provision may be held to be retrospective if it was enacted to cure some malady, and then of course history becomes important. No such intention is gathered from the object nor there is any such intention discernable from any provision of the Act.;