M. P. Saxena, J. - (1.) THIS is a defendant's revision application under Section 115 of the Civil Procedure Code against the judgment and order dated 1-11-1974 passed by the District Judge, Buland-shahr setting aside the judgment and decree passed by the learned Judge Small Causes, Bulandshahr.
(2.) THE plaintiff opposite party is the owner of a wooden stall which was let out to the defendant-revisionist on a monthly rent of Rs. 90/-. According to the plaintiff, it was constructed in 1964 and was not governed by the provisions of U. P. Act XVII of 1972. THE defendant fell in arrears of rent from 1st of November 1970 and a notice of demand and to quit was served on him on 4th November, 1970, but in vain. Hence he filed a suit for the eviction of the defendant from the disputed shop and for the recovery of arrears of rent. The defendant contested that suit on the ground that the shop was constructed in the year 1956 and was governed by the provisions of U. P. Act XXX of 1972. He challenged the validity of the notice and claimed the benefit of Section 39 of the new Act. The learned Judge Small Causes Court came to the conclusion that the shop was a building within the meaning of this expression under the U. P. Act XIII of 1972, that the notice to quit was valid and that the defendant was entitled to the benefit of Section 39 of the new Act. Accordingly the suit for ejectment was dismissed and as regards rent, it was directed that the plaintiff shall withdraw the amount already deposited in court. The plaintiff filed a revision application under Section 25 of the Small Cause Courts Act. Since the learned trial court had not recorded a clear finding as to when the disputed shop was constructed an issue on this point was remitted to his court for finding. The learned trial court gave his finding that the shop was constructed in the year 1964. The learned counsels for the parties gave their statement before the revisional court that for purposes of revision the construction may be deemed to have been completed towards the end of the year 1964. The judgment in revision was given on 1-11-1974 and the learned District Judge came to the conclusion that if the shop was completed in the latter part of 1964, it had not become 10 years old upto the date of the judgment and provisions of U. P. Act XIII of 1972 were not applicable to it. He further held that benefit of Section 39 of the new Act was not available to the defendant. The revision application was allowed and the suit for ejectment of the defendant from the disputed shop and for the recovery of Rs. 900 as arrears of rent and damages and pendentilite and future damages at the rate of Rs. 90 per month was decreed. It was further ordered that the amount already deposited by the defendant will be adjusted towards the decretal amount. It is against this order that the defendant has filed the present revision application.
(3.) SO far as the question whether the wooden shop falls within the definition of the word 'building' as defined in Section 3 (1) of U. P. Act XIII of 1972 is concerned, the said section defines 'building' as follows: " "Building" means a residential or non-residential roofed structure and includes- (i) any land including any garden, garages, out houses appurtenant to such building, (ii) any furniture supplied by the landlord for use in such building, (iii) any fittings or fixtures affixed to such building for the more beneficial enjoyment there of". The definition of 'building' in this Act is similar to the definition of 'accommodation' given under U. P. Act III of 1947. Under the old Act the question had arisen whether a shop with wooden structure and tin-shed will be regarded as accommodation or not. In Laxmi Das v. R. C. & E. O., A. I. R. 1953 Allahabad 458 it was held that it will be an accommodation within the meaning of the word 'accommodation' in that Act. Therefore, there can be no manner of doubt that a wooden shop with roofed structure will be regarded as building under the new Act also. The crucial point for consideration in this revision is whether the revisionist is entitled to the benefit of Section 39/40 of the Act. Section 39 lays down: "In any suit for eviction of a tenant from any building to which the old Act did not apply, pending on the date of commencement of this Act, where the tenant within one month from such date of commencement or from the date of his knowledge of the pendency of the suit, whichever be later, deposits in the court before which the suit is pending, the entire amount of rent and damages for use and occupation (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent, per annum and the landlord's full costs of the suit, no decree for eviction shall be passed except on any of the grounds mentioned in the proviso to subsection (1) or in clauses (b) to (g) of subsection (2) of Section 20, and the parties shall be entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary: Provided that a tenant the rent payable by whom does not exceed twenty five rupees per month need not deposit any interest as aforesaid." Section 40 says : "Where an appeal or revision arising out of a suit for eviction of a tenant from any building to which the old Act did not apply is pending on the date of commencement of this Act, it shall be disposed of in accordance with the provisions of Section 39, which shall mutatis mutandis apply.'' ;