Sibghat Ullah Khan, J. - (1.) THIS writ petition was earlier allowed by me on 16.11.2005. On the said date no one had appeared on behalf of tenant -respondent No. 3. Thereafter tenant -respondent No. 3 filed re -hearing/restoration application, which has been allowed today and learned Counsel for both the parties have been heard on merits. Paragraphs 3, 4 and 5 of my earlier judgment dated 16.11.2005 are quoted below, as they contain necessary facts and points involved in the writ petition: (3) Original petitioner Shrimati Prakash Rani alias Prakashwati since deceased and survived by L.Rs. filed S.C.C. 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 S.C.C. Revision No. 19 of 1990 by the tenant and S.C.C. Revision No. 20 of 1990 by landlord -petitioner. VIth 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). (4) So far as the order of Revisional Court in landlady's revision (S.C.C. 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. (5) However, as far as the judgment of the Revisional Court in tenant's revision (S.C.C. 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 as 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. It may be mentioned that in the aforesaid quoted paragraphs of my earlier judgment it as inadvertently observed that Revisional Court dismissed both the revisions. In fact Revisional Court had dismissed the revision of the landlord and had allowed the revision of the tenant.
(2.) THE finding of the Revisional Court while allowing the revision of the tenant to the effect that even though U.P. Act No. 13 of 1972 was not applicable to the building in dispute, still tenant was not liable to eviction, as he was not defaulter, in patently erroneous in law. If Rent Control Act is not applicable then tenant is liable to eviction after termination of his tenancy. No contrary agreement was pleaded or shown by the tenant. After termination of tenancy tenant can protect his possession only in two contingencies. Firstly, when some Rent Control Act gives protection to him and secondly, if there is any contrary agreement. In the instant case none of the two contingencies exist. Accordingly, writ petition is allowed in part. So far as the judgment and order of the Revisional Court on the revision of the landlord -petitioner (in respect of the rate of rent) is concerned, it is dismissed. However, writ petition is allowed in respect of judgment and order passed by Revisional Court on the revision of the tenant. The said judgment of the Revisional Court is set aside. The result is that the judgment and decree passed by the Trial Court is restored in its entirety. The tenant -respondent is granted one year's time to vacate provided that: (i) Within six weeks from today he files an undertaking before the Trial Court to the effect that on or before 7.7.2007 he will willingly vacate and handover possession of the property in dispute to the land lord -petitioner. (ii) For this period of one year, which has been granted to the tenant to vacate he is required to pay Rs. 9,000/ - (at the rate of Rs. 750/ - per month as damages for use and occupation. This amount shall also be deposited within six weeks before the Trial court and shall immediately be paid to the landlord -petitioner. (iii) It is further directed that entire unpaid arrears of rent at the rate of Rs. 60/ - per month due till date shall also be deposited before the Trial Court by the tenant for immediate payment to the landlord -petitioner. (iv) The amount of Rs. 3000/ - stated to have been deposited in pursuance of my order dated 10.2.2006 shall be adjusted from the aforesaid amounts required to be deposited by the tenant. In case of default in compliance with any of these conditions, tenant -respondent shall be evicted after six weeks through process of Court. It is further directed that in case the aforesaid conditions are not complied with within six weeks, then since after six weeks till actual dispossession tenant -respondent shall be liable to pay damages for use and occupation at the rate of Rs. 2000/ - per month. Similarly, if after complying with the aforesaid conditions the building in dispute is not vacated on the expiry of one year, then the damages for use and occupation shall be payable at the rate of Rs. 2000/ - per month since after one year till actual vacation.;