S.C. Mathur, J. - (1.) THIS is landlord's writ petition directed against the judgment and order, dated February 2, 1987, Annexure 5 passed by the VIIth Additional District Judge, Lucknow in revision under Section 25 of Provincial Small Cause Courts Act. The original petitioner B.P. Srivastava filed suit against Gyan Thakwani opposite party No. 2 for eviction from accommodation in question and recovery of arrears of rent and damages for use and occupation. The suit it appear was filed on January 29, 1984. The case of the plaintiff was that the property was not governed by the provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and that the tenant opposite party had sublet the premises. The trial court upheld both the pleas of the landlord and decreed the suit. The tenant preferred revision which came to be heard by the VIIth Additional District Judge, Lucknow. The learned Additional District Judge held that the first assessment of the property in question was made by the Corporation on April 1, 1976 and therefore, the building completed 10 years of construction in the year 1986. The revisional Court was of the view that on completion of the period of 10 years, the property came to be governed by the provisions of the aforesaid Act. It further was of the opinion that once the property comes to be governed by the provisions of the Act, decree for ejectment cannot be passed if the tenant avails of the benefit of Sections 39 and 40 of the Act. Giving the tenant benefit of these sections, the decree for eviction was set aside.
(2.) IT is not disputed that during the pendency of the revision before the Additional District Judge, the property became 10 years, old. The question for consideration' is whether the exemption granted under the Act to buildings which were not 10 years old at the time of the institution of the suit will continue to be available even after that period had expired. This question was settled by their Lordships of the Supreme Court in Om Prakash Gupta v. Vijendarapal Gupta : 1982 (8) ALR 242 SC, Vineet Kumar v. Mangal Sain Wadhera : 1985(10) ALR 115 SC two Judges Bench of the Supreme Court took a contrary view and held that the moment a building becomes 10 years old, the Rent Control Act would become applicable and it will not be possible to pass a decree for eviction on the basis that the Act is not applicable. The earlier decision of their Lordship in Om Prakash Gupta's case had been rendered by a Bench of 3 Judges. The matter again came up before a two Judges Bench in Nand Kishore Marwah and others v. Samundari Devi : 1987 (13) ALR 670 SC The Bench noticed that the earlier decision had been rendered by a three Judges Bench and, therefore, the same deserved to be followed in preference to the judgment rendered in Vineet Kumar's case. It has been observed by their Lordships that the attention of the Bench dealing with Vineet Kumar's case was not drawn to the decision in Om Prakash Gupta's case. This, however, is not the fact. Reference to that case has been made in paragraph 14 of the report and distinction has been drawn. That, however, is immaterial as I am bound by the latest pronouncement of their Lordships which contains also interpretation of the judgment in Om Prakash Gupta's case. Om Prakash Gupta's case, as interpreted by their Lordships in Nand Kishore Marwah's case, lays down that the exemption available under Section 2(2) of the Act at the time of the institution of the suit will not be lost when the property becomes 10 years old during the pendency of the litigation. After considering the impact of the judgment in Om Prakash Gupta's case their Lordships have observed in Nand Kishore Marwah's case as follows: .......This clearly indicates that the restriction put under Section 20 is to the institution of the suit itself and therefore it is clear that if the provisions of this Act applies then no suit for eviction can be instituted except on the grounds specified in the sub -sections of this section. Keeping in view the language of this section if we examine the provisions contained in sub -section (2) of Section 2 it will be clear that for a newly constructed building the provisions of this Act will not apply for 10 years and therefore so far as the restriction under Section 20 is concerned they will not apply and therefore it is clear that within 10 years as provided for in sub -section (2) of Section 2 restriction on the institution of suit as provided for in Section 20, Sub -section (1) quoted above will not be applicable and it is thus clear that during the pendency of the litigation even if 10 years expired the restriction will not be attracted as the suit has been instituted within 10 years and therefore restriction as provided for in Section 20 cannot be attracted (emphasis supplied). Earlier in paragraphs 11 and 12 of the report : 1987(4) SCC 382 their Lordship discussed the applicability of Sections 39 and 40 and held that those sections were attracted only to the proceedings which were also pending at the time of commencement of the Act. The date of the commencement of the Act is July 15, 1972 and the date of institution of the suit which has given rise to the instant petition is January 29, 1984, Thus the institution of the suit is much after the commencement of the Act
(3.) IN view of the above pronouncement of their Lordships neither the bar created by Section 20 was applicable to case on hand nor the benefit under Sections 39 and 40 is available to the tenant opposite party. Thus there was no impediment in the petitioner's suit being decreed. Apparently, the revisional court relied upon the judgment in Vineet Kumar's case, when it set aside the decree for eviction passed by the trial court. The revisional court decided the revision on February 2, 1987 and the judgment in Nand Kishore Marwah's case rendered on September 17, 1987. At the time of the decision of the revision, there was no option available to the said court. However, that judgment cannot now be sustained in view of the latest pronouncement. In view of the above, the petition is allowed and the judgment and decree passed by VIIth Additional District Judge is hereby set aside and that passed by the trial court is restored. The petitioners will be entitled to costs throughout.;