S.U.Khan, J. - (1.) This is landlord's writ petition. It was allowed ex-parte by me on 23.2.2004. On the said date no one had appeared on behalf tenant respondent No.3 Mithai Lal. Thereafter review/recall application was filed on behalf of respondent No.3 (application No. 17400 of 2005). Said application was dismissed in default on 6.4.2005. For setting aside the said order dated 6.4.2005 another application was filed on 5.5.2005 (application No. 103572 of 2005). On 30.1.2006 when restoration application was listed, no one appeared for landlords petitioners. On the said date learned counsel for the tenant respondent was heard on the restoration application as well as on the merits of the writ petition. Cause shown is sufficient. Both the restoration applications are allowed. Judgment and order dated 23.2.2004 allowing the writ petition is set-aside.
(2.) Para 2 of my judgment dated 23.2.2004 which contains the relevant facts is quoted below:- "This is landlord's writ petition arising out of proceeding initiated by him against tenant/respondent for ejectment in the form of S.C.C. Suit No. 15 of 1981 on the file of J.S.C.C., Mirzapur. In the plaint it was stated that the premises in dispute had been constructed in the year 1974-75 i.e. about 6 years before filing of the suit hence U.P. Act No. 13 of 1972 was not applicable to the building in dispute. However, in the oral statement plaintiff stated that the house was constructed in April, 1972. The trial court held that even if version of the landlord that building was constructed In April, 1972 was taken to be correct still during the pendency of the suit ten years expired, hence U.P. Act No. 13 of 1972 became applicable (suit was decided on 21.7.1982). The Trial Court held that the tenant was not defaulter, accordingly suit was dismissed for want of any ground under section 20(2) of U.P. Act No. 13 of 1972 by judgment and decree dated 21.7.1982. Landlord/respondent filed revision against the said judgment and decree being S.C.C. Revision No. 24 of 1982. District Judge, Mirzapur dismissed revision by order dated 23.2.1983. This writ petition is directed against the aforesaid judgment and decree passed by Revisional Court and J.S.C.C.. The Revisional Court held that it was not disputed that first house tax assessment was made on 2.4.1972, hence the said date was the date of construction. Both the court below placed reliance upon O.P. Gupta v. D.P. Gupta, 1982 ARC 391 (SC) and held that if ten years period expired during pendency of suit, Act became applicable and tenant was entitled to the benefit of the said Act."
(3.) The Supreme Court in Kishan v. Manoj Kumar AIR 1998 SC 999 has considered all the earlier authorities on the points involved in this case and has held that if 10 years period of exemption from the operation of the Act expires during pendency of the suit Rent Control Act does not become applicable.;