- (1.) J. C. Gupta, J. This is tenant's writ petition. The dispute relates to a shop in the ground floor of premises No. 51/10 (old) new No. 51/47,48 and 49, Ramganj, Kanpur. Respondent No. 3- landlord filed suit for ejectment against M/s. Parvinder Kumar Ajai Kumar as defendant No. 1, the petitioner as defendant No. 2 and respon dent No. 4 as defendant No. 3. Suit was filed with the allegations that the petitioner and respondent No. 4 were tenants of the disputed shop; that the rent receipts were being issued in the name of Parvinder Kumar Ajai Kumar (defendant No. 1) ; that the defendants had not paid rent from 1-6-1985 nor had they paid the increased water tax and sewerage tax; that Vijai Kumar, Smt. Kiran Nanda and Smt. Kaushalya Devi in conjunction with Par vinder Kumar had started a new business in the disputed shop under the name and style of Vijay Trading Company and the shop was now in occupation of this firm ; that the defendant Nos. 1,2 and 3 have thus transferred the occupation of the shop in question to sub-tenants without permis sion of the landlord; that the provisions of U. P. Act No. 13 of 1972 were not applicable to the accommodation in question and that the respondent No. 3 sent a notice of termination dated 9-12-1985 on the defen dants which had been duly served on them on 20-12-1985.
(2.) ONLY the petitioner contested the suit inter alia alleging that defendants No. 2 and 3 have jointly taken the disputed shop as tenants in July, 1975 at a monthly rent of Rs. 350 and that since 10-9-1988 the petitioner alone had been carrying on business in the name and style of M/s. Kashmiri Lai and Sons as its sole proprietor and had been alone paying rent for the same; that the business under the said name and style suffered serious set back during the riots at the time of assas sination of late Prime Minister Smt. Indira Gandhi and that at present the petitioner was carrying on business under the name and style of M/s S. Kumar and Company as its sole proprietor and Ajai Kumar defen dant No. 2 had no longer any interest in the disputed shop or in the tenancy or the business carried on therein and the petitioner was in occupation as sole tenant and was paying rent to the respondent No. 3 against receipts which were being still issued in the name of M/s. Parvinder Kumar Ajai Kumar. It was further alleged; that the business carried on under the name and style of M/s. Vijay Trading Com pany had been closed down on 9-9-83 and since then he alone is carrying on the busi ness and the starting of partnership busi ness in partnership did not amount to an act of sub-letting as the so called partner ship firm had nothing to do with the tenan cy and that during the time during which the business had been carried on under the name and style of M/s. Vijay Trading Com pany no objection was raised on behalf of the landlord. It was further pleaded that the shop was not a newly built shop as it has" been in existence before 1976 and on the date of the suit the disputed shop was more than 10 years old and was thus governed by the Act. The petitioner also claimed benefit of Section 20 (4) of the Act by depositing the requisite amount. On an examination of evidence on: record, the trial Court by the judgment dated 10-9-1991 decreed the suit holding that the provisions of the Act where not applicable ; that though the defendant- petitioner made requisite deposit as con templated under Section 20 (4) of the Act but was not entitled to get any benefit of the said provisions as the Act itself was not applicable. The trial Court further held that the defendant has sublet the disputed shop and that the notice of termination was duly served upon the petitioner. The revision preferred by the petitioners against the judgment of the trial Court has also been dismissed by the judgment dated 1-5-1993 and the revisional Court upheld the findings recorded by the trial Court. Shri S. P. Mehrotra, learned Coun sel appearing for the petitioner and Sarvoshri S. N. Verma, AN. Sinha and Shri Naveen Sinha, learned Counsel appearing for the respondent-landlord have been heard.
(3.) A perusal of the impugned judg ments would show that the decree for evic tion of the petitioner- defendant has been passed on the ground that the Act was not applicable to the shop in question and further that even if the same was ap plicable the defendant-petitioner made himself liable for ejectment on the ground of sub-letting. Both the Courts below have also concurrently held that notice of ter mination had been duly served upon the petitioner. The first and foremost question for consideration in this writ petition is whether the provisions of the Act were applicable to the shop in question on the date when the suit was instituted ? Undisputedly the suit in question was filed on 25th July, 1985 and as per the findings recorded by both the Courts below the shop in question was constructed within a period of 10 years of the date of institution of the suit. This finding is based on con sideration of the copy of the quinquennial assessment for the year 1973-78 which in dicates that the shop in question was sub ject to assessment and was assessed for the first time from 1- 4-1978. There is an en dorsement in the said paper that under the order of the assessment committee the building in question was assessed with ef fect from 1-4-1978. Learned Counsel for the petitioner argued that neither any resolution nor the order of assessment' committee was produced before the Courts below and since the oral evidence was led to the effect that the building in question was in exist ence before 1976, the said finding of the Courts below is liable to be vitiated. After examining the record this Court finds no substance in the above submission of the learned Counsel for the petitioner.;