K.C.Agrawal - (1.) THIS petition under Article 226 of the Constitution has been filed by Smt. Indira Pathak for quashing the order of II Additional District Judge dated 19-8-1988, allowing the review application of plaintiff-respondent no. 3, Parmarth Prakash, the landlord.
(2.) BRIEFLY stated the facts are these Suit no. 393 of 1981 was filed by Parmarth Prakash through his father, Dr. Gyan Prakash, Advocate, for the following reliefs : (i) that a decree be passed in favour of the plaintiff against the defendant directing eviction of the defendant from the accommodation in suit and delivery of its actual vacant possession to the plaintiff. (ii) that a decree be passed in favour of the plaintiff against the defendant for recovery of Rs.199.17 being the amount of rent due from the defendant. (iii) that a decree be passed in favour of the plaintiff for recovery of Rs.8.33 per day since 13-9-1981 as compensation for use and occupation till the date of eviction of the defendant from the suit accommodation-requisite court fee on which shall be paid in the execution side. He claimed the premises 22-C, Sardar Patel Marg, Allahabad was constructed and completed on 1-4-1973 within the meaning of U. P. Act No. XIII of 1972, therefore, the said Act had no application. His claim was that tenancy was although at will, but the plaintiff gave a notice by registered post dated 11-8-81, as a result of which the tenancy stood terminated on 18-9-1981. He claimed that the defendant was liable to pay at the rate of Rs.8.33 per day since 18-9-81 as compensation for use and occupation till the date of her eviction. The suit for recovery of Rs.1699.17 was filed on 18-9-1981. The defendant-petitioner filed a written statement claiming that U. P. Act XIII of 1972 since applied, on decree for ejectment could be passed without a ground mentioned in Section 20 of the said Act being fulfilled or established. On 15-7-83, the plaintiff applied for . amendment of the plaint under Order VI Rule 17 of the Code of Civil Procedure, claiming water tax. Paragraph 1 (c) of the amendment application reds as under :- "That thus the U. P. Act XIII of 1972 became applicable to the accommodation in suit with effect from 16-2-83 and the defendant is liable to pay water tax also, which is 12% of the assessed rental, i. e. Rs. 6 p. m. from 16-2-83."
(3.) THE suit was decreed ex-parte on 21-7-84 by the Judge Small Cause Court for eviction as well as for the recovery of damages for use and occupation at the rate of Rs.250/- per month with effect from 18-9-1981. The defendant, Smt. Indira Pathak, preferred a revision under Section 25 of the Provincial Small Cause Courts Act, which on being transferred, was allowed by Additional District Judge on 18-5-1987, relying on the decision of the Supreme Court in Vineet Kumar v. Mangalsen Badhera, 1984 AWC 128. In this case, the Supreme Court held : "The premises, which was not ten years old on the date of the suit and was exempted from the operation of new Rent Act, can be governed by it after ten years expired during the pendency of the litigation. The moment a building becomes ten years old to be recknoned from the date of completion the Rent Act would become applicable. " ;