ORDER A.P. Misra, J. - The present revision arises out of the judgment and order dated 28th May, 1984. passed by the Additional District Judge, Meerut exercising power as a Judge of Small Cause Court by virtue of which the plaintiffs suit for recovery of rent was decreed but the suit for the rest of relief namely eviction of the defendant-respondents was dismissed. 2. The brief facts of the case are that the' plaintiff filed suit for possession and for ejectment of the defendants from shop No. 4/689/3 and two go downs situate at Railway Road, Baraut and for recovery of arrears of rent and pendente lite and future mesne profits. 3. According to the plaintiff he is the . owner and landlord of the said shop together. with the go downs. It was averred that he constructed the shop in the year 1968 and another godown in the 1969, therefore, he pleaded that U.P. Act No. 13 of 1972 does not apply. The shop was taken by the defendant No. 1 on rent at the rate of Rs. 212.50 p. The total rate of rent of the aforesaid accommodation including the water tax and house-tax thus comes to Rs. 239.05 p. It is further averred that in the same building subsequently defendant No. 1 was also given one more godown on rent at the rate of Rs. 35.50 per month and thus he was liable to pay Rs. 4.50 p. as house tax and water tax per month. It is further alleged by the plaintiff that defendant No. 1 in the year 1976 started partnership firm under the name and style of M/s. Singhal Fertiliser Traders in the said shop and is using the two go downs also for the purpose of the partnership firm. It has, also been alleged that the induction of defendant Nos. 2 and 3 who are alleged to be the partners are strangers and, therefore, subtenancy has been created It is also averred that he (defendant No. 1) committed breach of terms of rent deed and notice was served on defendant No. 1 under S. 106 of the Transfer of Property Act terminating his tenancy and demanding arrears of rent. The aforesaid suit was decreed ex parte on 2nd Feb., 1978 which was, however, later on set aside on an application under S. 17 read with 0. 9, R. 13, C.P.C. 4. The aforesaid suit was decreed ex parte on 2nd Feb., 1978 which was, however, later on set aside on an application under S. 17 read with 0. 9, R. 13, C.P.C. 4. Thereafter in the written statement defendant No. 1 admitted the tenancy of the aforesaid accommodation but pleaded that the shop was constructed in the year 1967 and the provision of U.P. Act No. 13 of 1972 is fully applicable to the said premises. According to him he has sent rent by money order to the plaintiff but he deliberately refused to accept the same. The breach of lease deed as alleged by the plaintiff is denied. It was also averred that both defendants Nos. 2 and 3 were admitted in the partnership firm after taking permission from the plaintiff. The Judge Small Cause Court had came to the conclusion that Act No. 13 of 1972 is applicable and further that defendant No. 1 is entitled for benefit of S. 39 of the Act, both regarding the shop and the godown on rent. However, it is further held that defendant No. 1 has not made any structural alteration as alleged by the plaintiff. It was further found that defendant No.1 had sublet the accommodation in dispute after permission of plaintiff and, therefore, he was not liable for eviction under S. 20(2) of the Act. Regarding breach of terms of lease, this issue was not pressed by the defendant and, therefore, it was decided accordingly and according to the aforesaid finding the decree for arrears of rent was only made but the suit for eviction was dismissed. 5. The main argument raised on behalf of the applicant is that in the present case the admitted finding has been recorded that the assessment of the disputed accommodation in question was made for the first time on 1st April, 1969 and since ten years have not expired when the suit was filed, therefore, . 5. The main argument raised on behalf of the applicant is that in the present case the admitted finding has been recorded that the assessment of the disputed accommodation in question was made for the first time on 1st April, 1969 and since ten years have not expired when the suit was filed, therefore, . the finding to the contrary made by the trial Court is not sustainable in view of the decision in the case of Nand Kishore Marwah v. Smt Samundari Devi, AIR 1987 SC 2284 where it has been held that during the pendency of the litigation even if ten years expired the restriction will not be removed as the suit has been instituted within ten years and, therefore, no relief can be granted to the plaintiff in that suit on the basis of Act No. 13 of 1972 as that Act could be applicable. Argument has been raised on behalf of the defendant that the trial Court has not recorded any finding regarding as to when the first assessment was made and merely recording the finding on the basis of admission made by the plaintiff is not correct.and, therefore, the case should be remanded to the Court below for afresh adjudication. I have perused the relevant record in this case and also gone through the judgment. The trial Court has recorded a finding that the counsel for the plaintiff has not disputed about the date of assessment rather admits the same which is also proved by Paper Nos. 24-Ga and 25-Ga. I have -perused these papers. Some attempt was made on behalf of the defendant to show that the date given for assessment does not clearly indicate as to when the first assessment of the .disputed premises was made. On perusal of the said papers; specifically the date of order as to when the assessment was made is clear and also from paper No. 23-Ga which is an.. order of assessment passed regarding the disputed accommodation. It appears that the first assessment was made regarding the disputed accommodation in the year 1969. A finding has also been recorded by the trial Court in this regard However, since ten years expired during the pendency of the suit the provisions of the aforesaid Act No. 13 of 1972 would be inapplicable and thus the finding of the trial Court is not sustainable. A finding has also been recorded by the trial Court in this regard However, since ten years expired during the pendency of the suit the provisions of the aforesaid Act No. 13 of 1972 would be inapplicable and thus the finding of the trial Court is not sustainable. Admittedly from the perusal of the record and the finding recorded by the trial Court it is clear that when the first assessment was made regarding the disputed premises, ten years have not expired when the suit was filed and, therefore, the aforesaid Act would not be applicable. In , view of this further finding of.the trial Court giving benefit of S. 39 of the Act to the defendant is not correct. Benefit under S. 39 of the Act could only be given to a person to whom the said Act is applicable. S. 39 is a part of the very Act and in the present case the very Act is inapplicable, the application of S. 39 is also not possible. Therefore, the finding of the trial Court giving benefit to the defendant is not correct. It is further urged in this case that the finding of the trial Court refusing decree of eviction of the defendant from the disputed premises is also not correct. Once the aforesaid Act is not applicable, the benefit arising thereto is also net available to the defendant for his defence. It then becomes j simple case of landlord and tenant whose tenancy can be terminated by a notice under S. 106 of Transfer of Property Act. Since in this case notice has been given and served on the defendant, his tenancy stands terminated Therefore, the plaintiffs suit for even eviction of the defendant is liable to be decreed. 6. Accordingly the present revision is allowed and the judgment and order dated 28th May, 1985 of the Court below to the extent it refuses to grant decree for eviction of the defendant is set aside. On the facts of this case and in view of the finding recorded by this Court, the plaintiffs suit even for eviction of the defendant is hereby decreed. Costs on parties. 7. In the end the learned counsel for the defendant has urged that since he is in possession of the disputed accommodation for the last several years, therefore, some time be granted to him for vacating the premises in question. Costs on parties. 7. In the end the learned counsel for the defendant has urged that since he is in possession of the disputed accommodation for the last several years, therefore, some time be granted to him for vacating the premises in question. Having heard learned counsel for the parties I feel that it is desirable that four months' time be granted to the defendant to vacate the disputed premises without prejudice to the right of the defendant for filing appeal and subject to the condition that the defendant gives an undertaking for vacating the premises and handing over vacant possession within six weeks from today before the trial Court. The lower Court's record of this case be returned to the Court below at the earliest. 8. Copy of this judgment be issued to the learned counsel for the parties on payment of usual charges within one week from today.