S. D. Agarwala, J. - (1.) THIS revision is directed against an order passed by the 2nd Additional District Judge, Gorakhpur, dated 28th November 19, 5. A suit was filed against the applicant for arrears of rent and for ejectment. The applicant filed an application under Section 39 of U. P. Act 13 of 1972 in the trial court for getting the benefit of the said provision. The trial court held the application as not maintainable as in its view it was beyond time. Thereafter a revision was filed against the order and on 22nd December 1972 the District Judge held the application under Section 39 to be maintainable and remanded the case with the direction that the Munsif will decide the case afresh. The matter then again came up before the trial court. The trial court, after considering the evidence on record, decreed the suit for Rs. 540 for rent only and dismissed the suit in regard to the relief for ejectment. The respondent filed a revision before the Additional District Judge, Gorakhpur. The Additional District Judge, Gorakhpur has allowed the revision and granted the relief of eviction also against the applicant.
(2.) IN the present revision learned counsel for the applicant has raised two contentions before me. The first contention raised by the learned counsel is to the effect that the benefit of Section 39 of U. P. Act 13 of 1972 had been granted by the District Judge in the earlier revision filed by the applicant and the courts below had no jurisdiction to again go into the question and to reject the application under Section 39 of the Act. The second contention raised by the applicant is that the notice under Section 106 of the Transfer of Property Act had not been served on the applicant. IN my opinion there is no merit in both the contentions raised by the applicant. On 22nd December 1972 when the District Judge in the earlier revision remanded the case he decided only the question of the maintainability of the application under Section 39 of the Act. He did not go into the merits of the matter as to whether the deposit has been made or not as required by Section 39 of the Act and thereafter remanded the case for fresh decision. In the circumstances the trial court had the jurisdiction to go into the question as to whether the deposit was validly made under Section 39 of the Act. The Court below has recorded a finding that the applicant did not comply with the requirements of Section 39 of the Act. In the circumstances the decree for ejectment was rightly passed by the courts below. In regard to the second contention this question cannot be permitted to be raised for the first time in revision before this court. Before the court below this question was not raised. The only question raised was in regard to the validity of the notice under Section 106 of the Transfer of Property Act. I agree with the view taken by the court below on the question of the validity of the notice.
(3.) IN the circumstances there is no force in this revision. It is accordingly dismissed. Counsel for the opposite party has informed that in the property in dispute the applicant is carrying on his business. IN the circumstances I grant four months' time to the applicant to vacate the property. He will hand over vacant possession of the property in dispute to the opposite party after the expiry of four months. The parties are directed to bear their own costs. Revision dismissed.;