Ram Prakash v. 3rd Addl, Dj, Agra — 1988 DIGILAW 1174 (ALL)

JUDGMENT S.D. Agarwala, J. - This petition arises out of a suit No. 1038 of 1975 filed by Smt. Meera Devi against the petitioner for ejectment, arrears of rent and damages. 2. The property in dispute is a shop bearing No. 6/216-A, situate at Dekhini Gate Taj Ganj, Agra. The rate of rent is Rs. 70 per mensum. The suit was filed on the ground that the petitioner was a defaulter in the payment of rent. It was further alleged that U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 (U. P. Act No. 13 of 1972) (hereinafter referred to as the Act) is not applicable to the premises in question. 3. On 9th December, 1978 the Judge Small Causes Court decreed the suit. 4. Aggrieved, the petitioner filed Civil Revision No. 285 of 1978 under Section 25 of the Provincial Small Cause Courts Act. 5. The revision was ultimately dismissed by the 3rd Additional District Judge, Agra by his judgment dated 21st March, 1984. 6. The petitioner has now challenged the orders dated 9th December, 1978 and 21st March, 1984 by means of the present petition. 7. I have heard learned Counsel for the parties. 8. Learned Counsel for the petitioner has raised two contentions before me. His first contention is that U.P. Act No. 13 of 1972 became applicable to the premises in question in the year 1980 and, consequently the suit for ejectment could not have been decreed as it was barred under Section 20 of the Act. His second contention is that the petitioner was entitled to the benefit of Section 39 of the Act and the revisional Court has erred in not going into that question. 9. I am considering both the contentions raised by learned counsel for the petitioner together. 10. Learned Counsel for both the parties have relied upon five decisions of the Hon'ble Supreme Court in support of their respective contentions. 11. In Om Prakash Gupta v. Dig Vijendrapal Gupta, 1982(1) ARC 391 (SC) a Bench of the Hon'ble Supreme Court consisting of three Hon'ble Judges had an occasion to consider the effect of Section 39 of the Act. Learned Counsel for both the parties have relied upon five decisions of the Hon'ble Supreme Court in support of their respective contentions. 11. In Om Prakash Gupta v. Dig Vijendrapal Gupta, 1982(1) ARC 391 (SC) a Bench of the Hon'ble Supreme Court consisting of three Hon'ble Judges had an occasion to consider the effect of Section 39 of the Act. It was observed as follows : "Further, in order to attract Section 39 the suit must be pending on the date of commencement of the Act which is 15th of July, 1972 but suit giving rise to the present appeal was filed on 23rd of March, 1974 long after the commencement of the Act. There is yet anothers reason why section 39 will have no application to the present case. In view of sub-section (2) of Section 2 of the Act the Act is not applicable to a building which has not a standing of ten years and it would be absurd to say that Section 39 thereof would be applicable. Considered from any angle the Act has no application to the present case and the applicant could not be given the benefit of Section 39." 12. In Vineet Kumar v. Mangal Sain Wadhera, 1984 (1) ARC 265(SC) Hon'ble Supreme Court considered the question as to whether the premises which was not ten years old on the date of the suit and was exempted from the operation of the new Rent Act, can be governed by it if ten years expired during the pendency of the litigation. It was held by the Hon'ble Supreme Court that the New Rent Act would apply if ten years expire during the pendency of the litigation. So far as applicability of Section 39 of the Act is concerned, there was no discussion on this question but it was held that Section 39 of the Act would be applicable. 13. In Nand Kishore Marwah v. Smt. Samundari Devi, 1987 (2) ARC 361 the Hon'ble Supreme Court considered the question of applicability of Section 39 of the Act. It observed as follows : - "It is pertinent to note that this section applies to those suits which were pending on the date of the commencement of this Act. 13. In Nand Kishore Marwah v. Smt. Samundari Devi, 1987 (2) ARC 361 the Hon'ble Supreme Court considered the question of applicability of Section 39 of the Act. It observed as follows : - "It is pertinent to note that this section applies to those suits which were pending on the date of the commencement of this Act. Admittedly this act came into force on 15th July, 1972 and therefore if the suit was pending on the date it is only then that the provisions of assistance of tenant appellant." 14. In this case, consequently, it was made clear by the Hon'ble Supreme Court that Section 39 of the Act would only apply to those suits which were pending on 15th July, 1972. 15. In Atma Ram Mittal v. Ishwar Singh Punia, 1988 (2) ARC 557(SC) the Hon'ble Supreme Court specifically considered the question as to whether in a case where the Rent Act was not applicable on the date of the filing of the suit and the period of ten years expired during the pendency of the suit, whether the same could become applicable to such a case or not. The Hon'ble Supreme Court also considered the effect of U.P. Act No. 13 of 1972 and ultimately it was held that the suit would be disposed of on the basis of the rights of the parties on the date of the tiling of the suit and if a property was exempt under Rent Act at the time of the filing of the suit, if will continue to remain exempted until the disposal of the suit. The effect of this decision ms that if the ten years period in respect of building expired during the pendency of the suit, then too the suit would be decided on the basis of the cause of action on the date of the filing of the suit. 16. In Shiv Kumar v. Jawahar Lal Verma, 1988 (2) ARC 465, which is the latest case, the Hon'ble Supreme Court had an occasion to consider again the effect of Section 39 of the Act. 16. In Shiv Kumar v. Jawahar Lal Verma, 1988 (2) ARC 465, which is the latest case, the Hon'ble Supreme Court had an occasion to consider again the effect of Section 39 of the Act. It was observed as follows : "Having regard to the facts of the case, we do not think it necessary for us to go into the question whether the respondent would or would not be entitled to claim the benefit of Section 39 of the Act by reason of the suit for eviction not being a pending action of the date when the Act came into force." The Hon'ble Supreme Court, thereafter, as an alternative argument considered the question as to whether Section 39 was applicable to the facts of that case or not. The words, "be that as it may even accepting the respondents" from when the question of applicability of Section 39 of the Act was considered by the Supreme Court, are significant. In my opinion, on a reading of this case, it cannot be said that the Hon'ble Supreme Court has taken a view that even in a case which was filed after 15th July, 1972, Section 39 of the Act would be applicable. This question was not specifically considered by the Hon'ble Supreme Court, on the facts of that case, Section 39 did not apply. 17. On an analysis of the above mentioned cases, in my opinion, the latest decision of the Hon'ble Supreme Court on the question as to whether the premises which was not ten years old on the date of the suit and was exempt from the operation of the U.P. Act No. 13 of 1972 can be governed by it if ten years expired during the pendency of the litigation is decision in Atma Ram Mittal's case, 1988 (2) ARC 557 (SC), wherein this specific question was involved and it was decided that the pendency of the litigation will not affect that right of the parties which existed on the date of the suit. 18. In regard to I he question of applicability of Section 39 of the Act also in my opinion, the latest case of the Hon'ble Supreme Court is the decision in Nand Kishore Marwah's case (supra) wherein it was categorically held that Section 39 of the Act would only apply to those suits which were pending on 15th July, 1972. 18. In regard to I he question of applicability of Section 39 of the Act also in my opinion, the latest case of the Hon'ble Supreme Court is the decision in Nand Kishore Marwah's case (supra) wherein it was categorically held that Section 39 of the Act would only apply to those suits which were pending on 15th July, 1972. In the case of Sheo Kumar (supra), in my opinion, this question was not specifically decided but was left open for argument raised on behalf of the appellant before the Hon'ble Supreme Court. 19. In my opinion, in view of the decision in Nand Kishore Marwah's case (supra), Section 39 of the Act would be applicable only to a suit which was pending on 15th July, 1972, and as such in a suit is respect of which ten years period had not expired on 15th July, 1972 but expired thereafter during the pendency of the litigation Section 39 of the Act would apply, but the suit in that a case should be pending on 15th July, 1972, and not otherwise. 20. In view of the above, in my opinion, both the contentions raised by learned counsel for the petitioner do not have substance. 21. After the arguments were concluded learned Counsel for the petitioner cited before me a decision of Hon'ble K.C. Agrawal, in Writ No. 1696 of 1988, Smt. Indira Pathak v. IInd Addl. District Judge, Allahabad, decided on 25th November. 1988. (Since reported in 1989 (1) ARC 96). Hon'ble K.C. Agrawal, J., has held to the contrary relying upon the latest decision of the Hon'ble Supreme Court in Sheo Kumar (supra). 22. My reading of the decision in Sheo Kumar's case(supra) is that the first question raised by the Counsel for the petitioner has not at all been decided bad in regard to the second question also no final decision has been recorded in Sheo Kumar's case (supra) I, consequently, have to rely upon the latest decision on these questions which I have indicated above. 23. Since I have taken the view, contrary to the view taken by Hon'ble K.C. Agrawal, J., it is appropriate that the papers of this petition may be laid before Hon'ble the Chief Justice for constituting a larger Bench for decision of the petition.