S.C.Mathur - (1.) THIS is landlord's writ petition directed against the judgment and order dated 2-2-1987 Annexure 5 passed by the learned Vllth Additional District Judge, Lucknow in a revision under Section 25 of the Provincial Small Cause Courts Act.
(2.) THE original petitioner Sri B. P. Srivastava filed suit against opposite party no. 2 Gyan Thakwani for his eviction from the accommodation in question and for recovery of arrears of rent and damages for use and occupation. THE suit it appears was filed on 29-1-1984. THE case of the plaintiff was that the property was not governed by the provisions of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and that the tenent opposite party has sub-let 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 VIIIth Additional District Judge, Luck- now. THE learned Additional District Judge, held that the first assessment of the property in question was made by the Municipal Corporation on 1-4-1976 and, therefore, the building completed 10 years of construction in the year 1986. THE revisional Court was of the opinion that on the 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 came to be governed by the provisions of the Act, no decree for ejectment could be passed if the tenant, availing of the benefits conferred under Sections 39 and 40 of the Act, deposited the requisite amount. THE Court came to the conclusion that the tenant opposite party had complied with the requirements of Section 40 read with Section 39 of the Act. Accordingly, it allowed the revision and set aside the decree for eviction which had been passed by the trial Court. Landlord has filed the instant petition The writ petition came up before me for hearing earlier and I had by my judgment and order dated 28-9-1988 (See 1989 AWC 1324-Ed.) allowed the same. While allowing the writ petition, I had placed reliance upon the judgment of their Lordships of the Supreme Court in Nand Kishore Marwah v. Samundari Devi, 1987 AWC 1261, in which it has been held that Sections 39 and 40 of the Act were not applicable to suits filed after 15-7-1972 which was the date on which the Act was enforced. At that time, opposite party no. 2 was not represented before this Court. Later, the said opposite party filed an application indicating that he did not have knowledge of the proceedings and, therefore, he could not appear before this Court earlier. He wanted to be heard. His plea was accepted and the judgment and order dated 28-9-1988 was set aside by a separate order passed today. In the restoration application, the learned counsel for the parties had agreed on 4-7-1988 to argue out the writ petition itself in case the restoration application was allowed. After allowing the restoration application, I have heard Sri S. C. Misra, learned counsel for opposite party no. 2, and Sri N. K. Seth, counsel for the petitioner. The main thrust of the argument of Sri S. C. Misra is that my judgment rendered earlier is in conflict with the latest view expresed by their Lordships of the Supreme Court in Shiv Kumar v. Jawahar Lal Verma, AIR 1988 SC 2164=1988 AWC 1245. According to the learned counsel, in this judgment, it has been held that Sections 39 and 40 apply also to suits filed after 15-7-1972.
(3.) IT is now undisputed between the parties that at the time the suit giving rise to the present petition was filed, the property in question was not governed by the provisions of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. IT is also undisputed that during the pendency of the revision before the learned District Judge, the property completed 10 years from its construction. Section 39 which has been relied upon by the learned counsel for the tenant reads as follows :- "39. In any suit for eviction of a tenant from any building to which the old Act did not apply, pending on the date of commencement of this Act where the tenant within one month from such date of commencement or from the date of his knowledge of the pendency of the suit, whichever be later, deposits in the court before which the suit is pending, the entire amount of rent and damages for use and occupation (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine percent per annum and the landlord's full cost of the suit, no decree for eviction shall be passed except on any of the grounds mentioned in the proviso to sub-section (1) or in clauses (b) to (g) of subsection (2) of Section 20, and the parties shall be entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary. Provided that a tenant the rent payable by whom does not exceed twenty five rupees per month need not deposit any interest as aforesaid." (Emphasis supplied). The above section applies to proceedings at the trial stage. When the period of 10 years from the date of construction of the building is completed during the pendency of appeal or revision, relevant provision is contained in section 40 which reads as follows :- 40- "Where an appeal or revision arising out of a suit for eviction of a tenant from any building to which the old Act did not apply is pending on the date of commencement of this Act, it shall be disposed of in accordance with the provisions of section 39, which shall mutatis mutandis apply." (Emphasised) Section 40 merely applies the provisions of section 39 to appeals or revisions in the same manner as section 39 applies to suits. Therefore, the material provision which requires interpretation is section 39. Section 39 bears the heading "pending suits for eviction relating to building brought under regulation for the first time" From the opening words in the heading, it is apparent that section 39 applies only to suits pending at the time of the commencement of the Act. This is further made clear by the language of the said section which says "pending on the date of commencement of this Act". "Date of commencement of the Act" is undisputedly 15-7- 1972. Therefore, on a plain reading of sections 39 and 40, it is clear that they are not applicable to suits filed after 15-7-1972; they are applicable only to suits which were pending on the date of the enforcement of the Act. The present suit was filed on 27-1-1984 much after the commencement of the Act. Therefore, the said sections will not be applicable to it. The view expressed by me herein has been consistently held by their Lordships of the Supreme Court with the solitary exception of one case. I may immediately proceed to consider these cases in order to find out which view is binding upon me. I will refer to these cases in chronological order.;