Prakash Krishna, J. - (1.) THIS is a landlord's petition. It arises out of S.C.C. Suit No. 28 of 1986 instituted against the tenant respondent No. 3 herein for the ejectment, recovery of rent and damages. The suit was instituted on the pleas inter alia that the defendant tenant has committed default in payment of rent since 29th of October, 1984. The tenancy has been terminated by the no tice dated 27.10.1986. The said suit was contested by denying the plaint allegations. The Trial Court by its judgment and decree dated 2nd of August, 1996 dis missed the suit so far as ejectment is concerned, but decreed the suit for recovery of arrears of rent. Feeling aggrieved by the said judgment and decree, the peti tioner preferred Revision No. 36 of 1996 which has not only been dismissed but the decree which has been passed in favour of the petitioner for recovery of ar rears of rent has also been set aside by the judgment and order dated 9.9.1998 passed by Special/Additional District Judge, Bijnor. Challenging the afore said judgments the present writ petition has been filed.
(2.) HEARD learned Counsel for the parties and perused the record. A bare perusal of the judgment of the Trial Court would show that it found that the tenancy of the respondent was validly terminated in accordance with section 106 of the Transfer of Property Act. It has been further found that the tenant was defaulter in payment of rent for a period of more than 4 months. The tenant failed to pay rent in spite of service of notice. The suit was dismissed so far as ejectment is concerned on the ground that the tenant was inducted in the prop erty in question without any allotment order. In view of section 11 of the U.P. Act No. 13 of 1972 the Trial Court took the view that the suit for ejectment of a tenant is not maintainable. The Trial Court also found that the tenant has not complied with the provisions of section 20 (4) of the said Act and as such he is not entitled to claim the benefit of the said provision. The contention of learned Counsel for the petitioner is that in view of the decision of the Apex Court in Nootan Kumar and others v. IInd Additional District Judge, 2002 (49) ALR 251 (SC) the suit was maintainable. The learned Counsel for the respon dent, on the other hand, submits that there being no averment that the provi sions of U.P. Act No. 13 of 1972 are not applicable, no interference is called for. Considered respective submissions of the learned Counsel for the par ties and perused the record. The controversy as to whether such a suit is main tainable even if the tenant was inducted without an allotment order in viola tion of section 11 of the U.P. Act No. 13 of 1972, is no longer res integra. It has been set at rest by the Apex Court in the aforesaid decision wherein it has been held that a contract contrary to the provisions of the statute would be binding on the tenant and the suit for recovery of arrears of rent and ejectment is main tainable. This being the position, the Courts below were not justified in not passing a decree for ejectment and recovery of arrears of rent. It may be placed on record that so far as the findings recorded by the two Courts below on the question of default in payment of rent and validity of notice are concerned they have attained finality as they have not been challenged by the tenant by way of appeal or revision.
(3.) NO other point was pressed. In view of the above discussion, the writ petition succeeds and is al lowed. The impugned judgment and order dated 9.9.1998 passed in Revision No. 36 of 1996 and judgment dated 2nd of August, 1996 passed by the Judge, Small Causes Court in S.C.C. Suit No. 28 of 1996 are hereby set aside and modified. The suit for eviction, recovery of arrears of rent, pendente lite and future dam ages as claimed stands decreed.;