MOHD ZAKARIA Vs. DISTRICT JUDGE GONDA

JUDGEMENT

(1.) THROUGH this petition under Article 226 of the Constitution the petitioners who are landlords of a shop and of which opposite party no. 2 is a tenant, have prayed that the order dated 31-7-1980 passed by the learned lst Additional District Judge, Gonda, contained in Annexure-2 to the petition, be quashed. The shop in question was admittedly constructed sometime in 1970 and when the landlords filed the suit for arrears of rent and ejectment against the tenant-oppposite party no. 2 in 1978, it had not completed ten years after construction. One of the contentions was that U. P. Act 13 of 1972 did not apply to the building as it had not completed 10 years of age after construction and consequently the tenant-opposite party no. 2 could be evicted under the normal provisions of the Transfer of Property Act and that the protection of U. P. Act 13 of 1972 was not available to the tenant-opposite party no. 2. This position was challenged on behalf of the tenant. On hearing the parties the trial court decided the matter in favour of the landlords and ordered the eviction of the tenant-opposite party no. 2. The matter was taken in revision by the tenant and it came up before the Additional District Judge, Gonda. It was canvassed on behalf of the tenant that U. P. Act 13 of 1972 was applicable to the shop in question even though it had not completed the age of 10 years on the date of filing of the suit. This contention found favour with the revisional court which allowed the revision holding that the protection of U. P. Act 13 of 1972 was available to the tenant and ordered dismissal of the suit.

(2.) THE present petition has been filed challenging the aforesaid order of the learned Additional District Judge, Gonda on the ground that the matter has since been set at rest by recent decision and the protection of U. P. Act 13 of 1972 is not available to the tenant in the case of a building of this nature. Reliance has been placed on the decision of the Supreme Court in Ram Swaroop Rai v. Srimaii Lilawati, 1980 AWC 333 and Satya Narain v. Addl. District Judge, Jalaun, 1981 ARC 253 and Gopal Krishna v. Vth Addl. District Judge, Kanpur, 1981 AWC 321 (FB) where after a consideration of the earlier decisions it has been laid down that the exemption clause in the aforesaid Act was clearly applicable to all buildings which had not completed the age of 10 years irrespective of the fact whether they were constructed before the commencement of U. P. Act 13 of 1972 or thereafter. In the instant case the shop in question was constructed in 1970 and the suit was filed in 1978. U. P. Act 13 of 1972 was, therefore, clearly not applicable and the matter was covered by the exemption clause. In this view of the legal position the findings of the learned Additional District Judge, Gonda, holding that the aforesaid Act was applicable to this case, cannot be sustained. Since the matter was not decided by the learned Additional District Judge on merits and was disposed of on the point of applicability of the Act, the case will have to be sent back to him for decision.