K. C. Agrawal, J. - (1.) THIS is a petition under Article 226 of the Constitution filed against the order of the learned District Judge dated 21-11-1973 dismissing the appeal filed by the petitioners, under Section 22 of U. P. Act No. XIII of 1972 (briefly stated as 'the Act'). The petitioners are, admittedly, the owners of the premises in dispute, which is a house situate in Khatauli, district Muzaffarnagar. An application under Section 3 of U. P. Act No. HI of 1947 was filed by the petitioners against the respondent no. 3 for permission to bring a suit for eviction against him on the ground that the said premises was needed by them for the need of their business and godown. The application was contested by respondent no. 3. It was allowed by the Rent Control and Eviction Officer, against which the respondent No. 3 went in revision under Section 3(3) of the said Act. The revision was also dismissed on November 17, 1964. The order passed by the Commissioner became final inasmuch as the respondent No. 3 did not challenged it. It, however, appears that the petitioners did not file the suit in pursuance of the aforesaid permission till the enforcement of the new Act, when in November 1972 they filed an application purporting to be under Rule 18 of the Act. THIS application was filed on the ground that as the petitioners had obtained the permission under Section 3 of the old Act on the same ground on which they could have filed an application under Section 21 of the Act, therefore, they were entitled to get an order of delivery of possession against the said respondent. The said application was resisted by respondent No. 3 on various grounds. For the point urged on behalf of respondent No. 3, which I am going to accede, it is not necessary for me to deal with the pleas taken by him. The application was rejected by the Prescribed Authority, against which an appeal filed by the petitioners was also dismissed. Hence, the writ.
(2.) THE grounds on which the application made by the petitioners was rejected appear to be incorrect. THE learned District Judge wrongly found that as the petitioners did not file the suit within a period of three years from the date on which the revision filed by respondent No. 3 was dismissed, the remedy on the basis of the said permission was not available to them. THEre is nothing in the Limitation Act, 1963, which lays down any period of limitation for the purpose of filing a suit on the basis of permission. Article 113 of the Limitation Act relied upon by Sri H. S. Nigam, counsel for respondent No. 3, is of no assistance inasmuch as the said Article applies to a suit for which no period of limitation has been prescribed in other Articles. In other words, it is a residuary Article and can be applied when the other Articles of the Limitation Act do not apply. THE application filed by the petitioners was essentially one for the relief of ejectment and, as such, was covered by Article 67 of the Limitation Act. THErefore, the ground on which the learned District Judge found that the application filed by the petitioners was not maintainable is unsustainable. The other ground on which the learned District Judge held that the application made by the petitioners was not maintainable was that the need of the petitioners was not bona fide. It may be pointed out that Rule 18 of the Rules framed under the Act provides that in case an application under Section 3 of the old Act had been allowed on the same ground on which the application under Section 21 of the Act can be filed, it will not be open to the Prescribed Authority to go behind the order under Section 3 of the old Act. Similar is the language employed in Section 43(2) (rr) of the Act. Interpreting these provisions, it appears to me that the learned District Judge could not go into the merits of the bona fide requirement of the premises by the petitioners in these proceedings. The finding given under Section 3 of the old Act had to be taken as conclusive and binding on the parties. The next question that arises for consideration is whether an application of the type, which was filed by the petitioners in the instant case under Rule 18, could be filed under Rule 18 of the Rules framed under the Act. If the answer of the aforesaid question is in the negative, the application filed by the petitioners would be liable to be rejected. It is not in dispute that the premises in question was in occupation of respondent No. 3 for residential purposes. Clause (ii) to the third proviso to Section 21 of the Act lays down that no application under clause (a) shall be entertainable in the case of any residential building for occupation for business purposes. It would be seen that the premises in question is in occupation of respondent No. 3 for residential purposes and if the petitioners would have filed an application under Section 21 of the Act, the same would have been liable to be rejected , on the basis of this proviso. Accordingly, the petitioners would not be entitled to get possession of the premises in question on the basis of Rule 18 of the Rules as well inasmuch as the said rule also says that an application under Rule 18 would be maintainable only on the basis of that ground on which an application under Section 21 of the Act could be filed.
(3.) IN the result, the writ petition fails and is dismissed. No order as to costs. Petition dismissed.;