BANKEY BEHARI Vs. GOPAL DAS

JUDGEMENT

(1.) TWO questions have been referred to this Bench for opinion by a learned single Judge of this Court in the Civil Revision which came up for hearing before him.

(2.) THE material facts giving rise to this Civil Revision and the Reference are that the opposite party instituted a suit against the applicant for his ejectment from the shop in dispute and for recovery of a certain amount as arrears of rent. The claim was based on the allegations that the applicant was in arrears of rent for not less than four months and had failed to pay the same to the opposite party within one month of the service upon him of a notice of demand and further that the applicant had sub -let the premises in suit without the permission in writing of the landlord. These pleas fell within the purview of Section 20(2)(a) and (e) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 hereinafter referred to as the Act. The suit was instituted sometime in September, 1972. It was decreed ex -parte on the 16th August, 1973, but subsequently the ex -parte decree was set aside and the suit was restored to its original number on the 8th December, 1973. On the 10th December, 1973, after restoration of the suit the court passed an order to the effect that the written -statement be filed by the 7th January, 1974 and fixed 28th February, 1974 as the date for final hearing of the suit. No written statement was filed by the applicant on the date fixed. On the 28th February, 1974 an application was made by the Defendant -applicant for extension of time for filing written -statement. The application was allowed and the 4th April, 1974 was fixed as the date for filing of the written -statement. On the 4th April, 1974 the applicant filed his written -statement and on the same date filed a tender for the amounts contemplated by Section 20(4) of the Act. The tender was passed by the court on the 23rd April, 1974 and the applicant deposited the money on the same day. Evidence was recorded on the 6th February, 1975 and since it was a suit of the nature of small causes no issues were separately framed on any particular date, except during the dictation of the judgment. The suit was resisted on the pleas that the applicant was not in arrears of rent as alleged by the Plaintiff, that he had not sub -let the premises in dispute and consequently was not liable to ejectment from the premises in dispute or for a decree for arrears of rent. The Judge, Small Cause Court, believed the Plaintiff's case and decreed the claim for the ejectment of the applicant as also for arrears of rent. Aggrieved by the order of the Judge, Small Cause Court, the applicant preferred a revision under Section 25 of the Small Cause Court Act. The revisional court took the view that the applicant was entitled to the benefit of Section 20(4) of the Act and was not liable to eviction on the ground of default in payment of arrears of rent. The court below, however, maintained the decree of the trial court since it upheld the finding that the applicant was liable to ejectment on the ground mentioned in Section 20(2)(e) of the Act. The applicant preferred a revision to this Court. When the revision came up for hearing before a learned single Judge of this Court, he found the finding recorded by the court below with regard to the plea of sub -letting by the Defendant unsustainable and consequently reversed that finding. The opposite -party supported the decree of the court below and contended that the view taken by the learned District Judge on the interpretation of Section 20(4) of the Act was erroneous and deserves to be reversed. Learned Counsel for the Plaintiff -Respondent placed reliance before the learned Single Judge on the decision of K.C. Agrawal, J. in Bhola Nath v. Pyare Lal : 1975 AWC 489 in support of his contention. The learned single Judge was not inclined to agree with the view expressed by K.C. Agrawal, J. in Bhola Nath v. Pyare Lal since in his opinion it was in conflict with the decisions of this Court in Jagannath Prasad v. Smt. Chandrawati, 1969 ALJ 881, Ganesh Prasad v. Smt. Saraswati Devi, 1973 ALJ 268, Kamta Prasad Jain v. Om Prakash, 1966 ALJ 1108 and Mewa Ram v. Ablak, 1936 ALJ 1401. The learned Single Judge also noticed a conflict of views on the question as to which is the first date of hearing of a suit within the meaning of Section 20(4) of the Act. The cases brought to the notice of the learned Single Judge have been mentioned in the Referring order. None of the cases which were cited before the learned single Judge had taken note of the Explanation introduced in Section 20(4) of the Act by the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976 (U.P. Act No. 28 of 1976) hereinafter referred to as the Amending Act. He consequently referred the following two questions for decision by a larger Bench:

(3.) A Division Bench of this Court in Mt. Gomti v. Lachman Das Champa Ram : AIR 1934 All. 817 held that,