HARISH KUMARI Vs. IX ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) THIS is tenant's petition arising from a suit for ejectment from accommodation and for recovery of arrears of rent and damages for use and occupation. The relief for ejectment was sought on two grounds -(i) default in payment of rent within the meaning of Section 20(2)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972(13 of 1972), for short Act, and (ii) sub-letting within the meaning of Section 20(2)(e) of the Act. The decree for ejectment has been passed by both the courts below on the ground of sub-letting. Since the question of default has become final between the parties. I am mentioning herein facts relating to sub-letting only.

(2.) IN the year 1967 the landlady of the accommodation in question filed Suit No. 59 of 1967 against the tenant for ejectment from accommodation and for recovery of arrears of rent. In this suit it was pleaded by the landlady that the accommodation in question had been constructed in the year 1958 and, therefore, U.P. (Temporary) Control of Rent and Eviction Act, 1947 (3 of 1947), for short old Act, was not attracted. The plea of the landlady that the accommodation was constructed in 1958 was upheld by the trial Court and accordingly decree for ejectment was passed. The trial Court had decreed the suit on 7th April, 1972. Aggrieved by this judgment and decree the tenant preferred First Appeal before the learned District Judge. During the pendency of the appeal the old Act was repealed and the new Act was enforced with effect from 15th July, 1972. The new Act applied even to the accommodation constructed prior to its enforcement and had completed ten years from the date of its construction. Since the accommodation in question had completed this period of ten years prescribed in Section 2(2) of the new Act it fell within the purview of the Act. Section 39 of the new Act made provision for pending suits for eviction relating to buildings brought under the Act for the first time. Under this provision the tenant could get relief from the decree for eviction if he deposited the entire amount of rent and damages for use and occupation together with interest at the rate of 9% within the time prescribed in the section. In order to avail of the benefit of Section 39 the tenant deposited the amount and claimed relief from ejectment. The First Appellate Court did not relieve the tenant from the liability of ejectment on the ground that he was not in occupation of the accommodation as he had inducted therein Smt. Kamla Devi Wahi and Sri Kulbir Wahi, opposite parties 8 and 9. Accordingly the appeal was dismissed. Against the judgment and decree of the First Appellate Court second appeal was filed in this Court by the tenant and the persons who had been inducted by the tenant into the accommodation in question. This Court was of the opinion that since the landlady had not amended her plaint in order to take advantage of Section 20(2)(e) of the Act the tenant was entitled to be relieved of the liability of ejectment from the accommodation in question. Accordingly by judgment and order dated 14th May, 1976 the second appeal was allowed by a learned single Judge of this Court. Thereafter the landlady issued notice dated 25th March, 1977 to the tenant demanding arrears of rent and terminating his tenancy. Sometime after 24th April, 1977 Small Cause Court Suit No. 808 of 1977 was filed which has given rise to the present writ petition. In the suit ejectment was claimed on the basis of default in payment of rent as well as on the ground of sub-letting. The tenant deposited the amount mentioned in Section 20(4) of the new Act and, therefore, the landlady was held to be disentitled to claim ejectment on the ground of default in payment of rent. However, her right to claim ejectment on the ground of sub-letting was upheld and accordingly decree for ejectment was passed. In revision under Section 25 of the Provincial Small Cause Courts Act filed by the heir of the deceased tenant Pyare Lal and the sub-tenants, the finding of sub-tenancy was maintained and accordingly the revision was dismissed. Aggrieved by the decree for ejectment the widow of the deceased tenant Pyare Lal has preferred the instant petition. Opposite parties 8 and 9 to this petition are the sub-tenants and opposite parties 5 to 7 are the other heirs of the deceased tenant Pyare Lal. Opposite parties 3 and 4 are the heirs and legal representatives of the deceased landlady Smt. Durga Devi.

(3.) THE submission of the learned Counsel for the petitioner is that even on the finding of fact recorded by the Courts below the sub-letting in question is not hit by clause (e) of Section 20(2) of the new Act and, therefore, the suit could not be deceased for ejectment. The argument is two-fold- (i) Section 20(2)(e) covers only the sub-letting done after the enforcement of the Act and not one done before its enforcement, and (ii) the sub-letting in question had the implied consent of the landlady. In elaboration of the first argument the learned Counsel submits that the new Act is not retrospective in operation and, therefore, it will not cover a sub-letting done prior to the enforcement of the Act.