A.P.Misra - (1.) -These revisions are directed as against an order dated 21st November, 1987, passed by the Judge, Small Causes, after remand, by virtue of which the suit of the plaintiff-respondent-landlady for arrears of rent, mesne profits and eviction from the accommodation in dispute was decreed. The plaintiff also has preferred revision challenging finding on issue no. 2.
(2.) BRIEF facts of the case are : two halls and two bath rooms forming part of premises no. 1/9-C situate at Mahatma Gandhi Road, Agra were let out by the respondent to the applicants-defendants-tenants at a monthly rent of Rs. 600/- plus Rs. 100/- payable on account of municipal taxes for a fixed period ending 31st January, 1979. The premises in question was taken on rent for running a school under the name and style Brahma Kumari Ishwariya Vishwa Vidyalaya, Agra. Subsequent to the expiry of the aforesaid period the tenant of the premises remained in occupation for a month which was granted. Thereafter, since the premises was not vacated despite repeated demands the tenancy was terminated by means of registered notice dated 22-4-1979. The building was constructed on 1st October, 1972. As per the respondent's-landlady's case U. P. Act no. XIII of 1972 does not apply to the premises in question, the defendants fell in arrears of rent from 1-3-1979 to 26-5-1979 and further claimed damages for use and occupation from 27th May, 1979 to 2nd July, 1979 at the rate of Rs. 20/- per day along with Rs. 60/- as costs of notice and Rs. 600/- as municipal taxes from 1st March, 1979 to 31st August, 1979. In this case, service of notice for termination of tenancy under section 106, Transfer of Property Act was done on the applicant-defendants by refusal. The defendants contested the claim of the plaintiff and pleaded that the plaintiff let out the land for permanent construction, on which the defendants are running the aforesaid school. The jurisdiction of the Judge, Small Causes Court, was also challenged. It was also urged that there was no relationship of landlord and tenant between the plaintiff and defendant no. 1 and defendant no. 2 came into occupation of the premises in suit as tenant on behalf of Smt. Urmila Gupta in March, 1972. The further contention also was that on the principles of res judicata the plaintiff-respondent is bound by the judgment of this Court in earlier revision. The court below decreed the suit by holding that U. P. Act No. XIII of 1972 was not applicable to the premises in dispute, notice dated 22nd April, 1979, had determined the tenancy of the defendants and service was held sufficient by refusal, the suit was not barred by estoppel and acquiescence ; the suit was not bad for non-joinder of Km. Vimla, and the court had jurisdiction to adjudicate on the suit. The applicants-defendants filed a revision before this Court, which was numbered as Civil Revision No. 524 of 1981 and this Court relying on the case of Vineet Kumar v. Mangal Sain, 1984 AWC 128 SC held that even though when the suit was filed the building was not covered by U. P. Act No. XIII of 1972, since ten years did not expire, but since during the pendency of the suit ten years were completed, the provisions of the aforesaid Act No. XIII of 1972 could be applicable. Thus, the decree of eviction and mesne profits was set aside and the case was remanded to the court below for considering the remaining matter with a direction that the Court should apply the provisions of the Act and to also consider what further amount is due from the tenant and to consider what benefit the applicant-tenant under section 39 of the Act No. XIll of 1972 is entitled. The decision of this Court squarely rested on the decision of the Vineet Kumar's case (supra). After remand, the trial court held that the tenant is entitled for the benefit of Section 39 as no suit was pending on 15th July, 1972 when the aforesaid Act came into force, which is a pre- condition for granting benefit to a tenant Since the present suit was instituted only on 30th July, 1979 i. e. several years after coming into force of the said Act, it was held, the tenant is not entitled for any such benefit. It recorded a finding, the requisite deposit contemplated under the provision was not made within the time stipulated, and, secondly, even the total amount, for which deposit should have been made was not made. Thereafter, the trial court again decreed the suit of the plaintiff-respondent for eviction and for recovery of rent with interest and mesne profits. Aggrieved as against this, the present revision has been filed. I have heard the learned counsel for the parties and perused the records.
(3.) THE main contention raised on behalf of the applicants-tenants is once this Court in the earlier revision held that the Act is applicable it was beyond the competence of the trial court to have come to the conclusion that section 39 was not applicable ; since as against an order of remand the landlord-respondent did not go up in appeal to the Supreme Court, therefore, that order became final and it was no more open for the trial court to have considered the matter afresh, and, finally, the finding that the applicants did not in terms comply with section 39 was also wrong as the applicants did deposit all the amounts, which are referred to under the said provision. On the other hand, it was urged on behalf of the respondent that since after the order passed by this Court while remanding the case, Vineet Kumar's case (supra) was specifically overruled by the Supreme Court in Nand Kishore Marwah v. Smt. Samundari Devi, 1987 AWC 1261 SC. THE trial court was justified in holding that benefit of section 39 could not be given to the tenant. It was further contended that since there was no appeal provided to the Supreme Court as against an order of remand the matter would become final and the question could always be raised subsequently by filing an appeal as against the original judgment and decree after remand. It was further contended on the facts of this case, there is no question of the application of principles of res judicata as there was no finality to the proceedings between the parties. The main thrust by the learned counsel for the applicants was that in the earlier order of this Court in revision it was clearly held relying on Vineet Kumar's case (supra) that the trial court on remand will only consider as to what benefit the tenant is entitled under section 39 of Act No. XIII of 1972 and the trial court was bound by that order and could not have gone beyond the order in remand.;