RAJ BAHADUR Vs. IST ADDITIONAL D J KANPUR

JUDGEMENT

(1.) B. K. Singh, J. The petitioner, who is the owner-landlord of the accommoda tion in dispute, has preferred this writ petition challenging the judgment and order dated 20-11-1985 passed by 1st Additional District Judge, Kanpur whereby the revisional court has allowed the revision filed by the respondent No. '' and relieved him from the liability of ejectment.

(2.) CERTAIN relevant facts, necessary for the disposal of the writ petition, may be stated. The petitioner, who is owner-landlord of the house No. 2-A/198, Azad Nagar, Kanpur, filed a suit against the respondent No. 2 for ejectment and for the recovery of arrears of rent, damages pendente lite and future at the rate of Rs. 75 per month, in the court of Additional Judge, Small Cause Courts, Kanpur on 16-7-1979. The said suit was contested by the respondent No. 2 on various grounds. The Additional Judge, Small Cause Courts, vide his judgment and order dated 18-9-1981 decreed the suit with costs. The respondent No. 2 was to be evicted from the accommodation in dispute which consists of one room above the garage in premises No. 2-A/198, Azad Nagar, Kanpur and was required to pay arrears of rent and damages pendente lite and future at the rate of Rs 75 per month. The respondent No. 2 challenged the judg ment and order passed by the Additional Judge, Small Cause Courts by way of a revision in the Court of District Judge, Kanpur. The revision was transferred to the Court of the respondent No. 1. It may be stated that the Additional Judge, Small Cause Court had recorded a finding that the U. P. Act No. XIII of 1972 were not applicable to the accommodation in dispute. When the revision was filed then too the period of ten years from the date of the firs assessment of the accommodation in dispute had not expired. Said period of ten years', however, expired during pen dency of the revision. The tenant thereafter deposited the amount of arrears of rent, pendente lite damages and costs of the suit etc. in the revisional court and he claimed benefit of sub-section (4) of Section 20 of the U. P. Act No. XIII of 1972. Learned 1st Additional District Judge, Kanpur heard the parties counsel. On all other relevant issues the learned 1st Additional District Judge agreed with the trial Court. How ever, placinig reliance on two decision of the Hon'ble Supreme Court, reported in 1982 (1) ARC 391 - Om Prakash Gupta v. Dig Vijendrapal Gupta and the decision reported in 1984 (1) ARC, 265 - Vineet Kumar v. Mangal Sen Wadhera he has held that the date of the assessment shall be taken to be the date of completion and further that the respondent No. 2 having deposited the amount as specified in Sec tions 39/40 of Act No. XIII of 1972, the tenant's liability of ejectment would stand relieved. Learned 1st Additional District Judge, Kanpur also placed reliance on a decision reported in 1985 (2) ARC 363 - Riyayatullah v. D. J. , Saharanpur, which provides that it is the function of the revisional court to adevert to the section as to whether the petitioner tenant was entitled to the protection of Section 39/40 of the Act as the constructions became more than ten years old when the revision was pending. According to the learned 1st Additional District Judge, the gamut of these rulings is that if the constructions became ten years old during the pendency of the litigation, the tenant would be entitled to the protection of the Act and he may be relieved of the liability from ejectment by depositing the amount as contemplated either under Section 20 (4) or under Sections 39/40 of the Act. According to him, since respondent No. 2 had deposited amount required to be deposited by him under Section 40 of the Act within a period of one month reckoned on 1-4-83 on which date the Act applied to the disputed accommodation. This aspect of the matter cannot be ignored by the revisional court and the subsequent events which have taken place have to be taken into consideration. Accordingly, learned 1st Additional District Judge held that the respondent No. 2 cannot be evicted from the disputed premises in view of the fact that the Act has now come to apply and he had deposited the amount as contemplated under Sections 39/40 of the Act/the learned. 1st Addi tional District Judge, with the above findings, allowed the revision and set aside the trial court's judgment and decree in so far as it relates to the eviction of the respon dent No. 2 from the room in question. It is against this judgment of the 1st Addl. D. J. , Kanpur that the present writ petition has been filed by the owner landlord.

(3.) I have considered the above submissions of the learned counsel of the petitioner. As pointed out earlier, where I have stated relevant facts, it is clear that in this case the courts below have held that the first assessment was made on 1-4-1973. Consequently, that would be the date of completion of the building for the purpose of computing ten years as stated in the U. P. Act No. XIII of 1972. The trial Court as well as the revisional Court have taken this date, that is, 1-4-1973 as the date of completion of the accommodation in dispute. Consequently when the suit was filed on 16-7-1979 the period of ten years from the date of the completion the construc tion of the accommodation had still not expired. The result is that the trial court rightly held that the provisions of the Act No. XIII of 1972 did not apply. The revision was preferred by the respondent No. 2 against the judgment and order of the Additional Judge, Small Cause Courts dated 18-9-1981 before expiry of ten years' period. As such till the date of filing of the revision provisions of U. P. Act No. XIII of 1972 did not apply to the accommodation in dispute. However, during pendency of the revision ten years' period expired on 1-4-1983. Respondent No. 2 applied for amendment of the written statement and also deposited the amount which, accord ing to the learned 1st Additional District Judge, was required to be deposited by him under Section 39 or 40 of the Act. Now short question that remains for consideration is that as to whether the respondent No. 2 became entitled to the benefit as provided in the said sections and stood relieved of the liability from ejectment.