JUDGMENT S.C. Mathur 1. This is landlord's writ petition directed against the judgment and order dated 2-2-1987 Annexure 5 passed by the learned Vllth Additional District Judge, Lucknow in a revision under Section 25 of the Provincial Small Cause Courts Act. 2. The original petitioner Sri B. P. Srivastava filed suit against opposite party no. 2 Gyan Thakwani for his eviction from the accommodation in question and for recovery of arrears of rent and damages for use and occupation. The suit it appears was filed on 29-1-1984. The case of the plaintiff was that the property was not governed by the provisions of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and that the tenent opposite party has sub-let the premises. The trial Court upheld both the pleas of the landlord and decreed the suit. The tenant preferred revision which came to be heard by the VIIIth Additional District Judge, Luck- now. The learned Additional District Judge, held that the first assessment of the property in question was made by the Municipal Corporation on 1-4-1976 and, therefore, the building completed 10 years of construction in the year 1986. The revisional Court was of the opinion that on the completion of the period of 10 years, the property came to be governed by the provisions of the aforesaid Act. It further was of the opinion that once the property came to be governed by the provisions of the Act, no decree for ejectment could be passed if the tenant, availing of the benefits conferred under Sections 39 and 40 of the Act, deposited the requisite amount. The Court came to the conclusion that the tenant opposite party had complied with the requirements of Section 40 read with Section 39 of the Act. Accordingly, it allowed the revision and set aside the decree for eviction which had been passed by the trial Court. Landlord has filed the instant petition The writ petition came up before me for hearing earlier and I had by my judgment and order dated 28-9-1988 (See 1989 AWC 1324 -Ed.) allowed the same. Accordingly, it allowed the revision and set aside the decree for eviction which had been passed by the trial Court. Landlord has filed the instant petition The writ petition came up before me for hearing earlier and I had by my judgment and order dated 28-9-1988 (See 1989 AWC 1324 -Ed.) allowed the same. While allowing the writ petition, I had placed reliance upon the judgment of their Lordships of the Supreme Court in Nand Kishore Marwah v. Samundari Devi, 1987 AWC 1261, in which it has been held that Sections 39 and 40 of the Act were not applicable to suits filed after 15-7-1972 which was the date on which the Act was enforced. At that time, opposite party no. 2 was not represented before this Court. Later, the said opposite party filed an application indicating that he did not have knowledge of the proceedings and, therefore, he could not appear before this Court earlier. He wanted to be heard. His plea was accepted and the judgment and order dated 28-9-1988 was set aside by a separate order passed today. In the restoration application, the learned counsel for the parties had agreed on 4-7-1988 to argue out the writ petition itself in case the restoration application was allowed. After allowing the restoration application, I have heard Sri S. C. Misra, learned counsel for opposite party no. 2, and Sri N. K. Seth, counsel for the petitioner. 3. The main thrust of the argument of Sri S. C. Misra is that my judgment rendered earlier is in conflict with the latest view expresed by their Lordships of the Supreme Court in Shiv Kumar v. Jawahar Lal Verma, AIR 1988 SC 2164 =1988 AWC 1245. According to the learned counsel, in this judgment, it has been held that Sections 39 and 40 apply also to suits filed after 15-7-1972. 4. It is now undisputed between the parties that at the time the suit giving rise to the present petition was filed, the property in question was not governed by the provisions of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. IT is also undisputed that during the pendency of the revision before the learned District Judge, the property completed 10 years from its construction. Section 39 which has been relied upon by the learned counsel for the tenant reads as follows :- "39. IT is also undisputed that during the pendency of the revision before the learned District Judge, the property completed 10 years from its construction. Section 39 which has been relied upon by the learned counsel for the tenant reads as follows :- "39. In any suit for eviction of a tenant from any building to which the old Act did not apply, pending on the date of commencement of this Act where the tenant within one month from such date of commencement or from the date of his knowledge of the pendency of the suit, whichever be later, deposits in the court before which the suit is pending, the entire amount of rent and damages for use and occupation (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine percent per annum and the landlord's full cost of the suit, no decree for eviction shall be passed except on any of the grounds mentioned in the proviso to sub-section (1) or in clauses (b) to (g) of subsection (2) of Section 20, and the parties shall be entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary. Provided that a tenant the rent payable by whom does not exceed twenty five rupees per month need not deposit any interest as aforesaid." (Emphasis supplied). The above section applies to proceedings at the trial stage. When the period of 10 years from the date of construction of the building is completed during the pendency of appeal or revision, relevant provision is contained in section 40 which reads as follows :- 40- "Where an appeal or revision arising out of a suit for eviction of a tenant from any building to which the old Act did not apply is pending on the date of commencement of this Act, it shall be disposed of in accordance with the provisions of section 39, which shall mutatis mutandis apply." (Emphasised) Section 40 merely applies the provisions of section 39 to appeals or revisions in the same manner as section 39 applies to suits. Therefore, the material provision which requires interpretation is section 39. Therefore, the material provision which requires interpretation is section 39. Section 39 bears the heading "pending suits for eviction relating to building brought under regulation for the first time" From the opening words in the heading, it is apparent that section 39 applies only to suits pending at the time of the commencement of the Act. This is further made clear by the language of the said section which says "pending on the date of commencement of this Act". "Date of commencement of the Act" is undisputedly 15-7- 1972. Therefore, on a plain reading of sections 39 and 40, it is clear that they are not applicable to suits filed after 15-7-1972; they are applicable only to suits which were pending on the date of the enforcement of the Act. The present suit was filed on 27-1-1984 much after the commencement of the Act. Therefore, the said sections will not be applicable to it. The view expressed by me herein has been consistently held by their Lordships of the Supreme Court with the solitary exception of one case. I may immediately proceed to consider these cases in order to find out which view is binding upon me. I will refer to these cases in chronological order. 5. The first of the above case is Om Prakash Gupta v. Dig Vijendrapal Gupta, AIR 1982 SC 1230 =1982 AWC 226. This case was decided by a Bench of three Hon'ble Judges. In paragraph 7 of this report, it has been observed thus- "Further in order to attract section 39 the suit must be pending on the date of commencement of the Act which is 15-7-1972 but the suit giving rise to the present appeal was filed on 23rd of March, 1974 long after the commencement of the Act......" 6. The next case is Vineet Kumar v. Mangal Sain Wadhera, AIR 1985 SC 817 =1984 AWC 128. The Bench comprised two Hon'ble Judges, one of whom was Hon'ble R. B. Misra, J. (as he then was). Hon'ble Misra, J. was a member also of the three Judges Bench which decided the case of Om Prakash Gupta. In this case, a contrary view was taken and it was stated that the observations made in Om Prakash Gupta's case were obiter. It was held that the benefit of section 39 will be available in those suits also which were filed after 15-7-1972. In this case, a contrary view was taken and it was stated that the observations made in Om Prakash Gupta's case were obiter. It was held that the benefit of section 39 will be available in those suits also which were filed after 15-7-1972. The contrary view was taken not on the basis that the language of sections 39 and 40 warranted it but on the principle that "procedure is the handmaid and not the mistress of the judicial process" referred to in the earlier decision of the court in Pasupati Venkateshwarlu v. Motor and General Traders, 1975 (1) SCC 770 ( AIR 1975 SC 1409 ). After referring to the principle, their Lordships did not proceed to lay down that what is provided in sections 39 and 40 is a matter of procedure and not of substantive right. In Nand Kishore Marwah v. Samundari Devi, 1987 AWC 1261 after reproducing section 39 of the Act in paragraph 10 of the report, a Bench of two Hon'ble Judges has observed in paragraph 11 thus- "It is pertinent to note that this section applies to those suits which were pending on the date of commencement of this Act. Admittedly this Act came into force on 15-7-1972 and therefore if the suit was pending on that date it is only then that the provisions of section 39 will come to the assistance of the tenant-appellant. Admittedly this suit was not pending on the date on which this Act came into force........." The above view is based on interpretation of the language of section 39. The positive view taken in this case is that section 39 applies only to those suits which were pending on 15-7-1972 and does not apply to suits filed thereafter. The attention of the Bench was invited to Vineet Kumar's case. The Hon'ble Judges reproduced a passage from Vineet Kumar's case and thereafter observed- "But unfortunately attention of the court was not drawn to Om Prakash Gupta's case (supra) which specifically considered this Act and the language of section 39 in particular and is a decision of a Bench of three Judges which is binding on us." This observation of course is not factually correct as Om Prakash Gupta's case had in fact been noticed in Vineet Kumar's case, of course with the observation that the statement contained therein was obiter dicta. However, that does not affect the position that in this case, the finding recorded by a Bench equal in strength to the Bench which decided Vineet Kumar's case is that section 39 applies only to those suits which were pending on 15-7-1972. This case was decided subsequent to the case of Vineet Kumar and was relied upon by me in my earlier judgement dated 28-9-1988. 7. Now, I may come to the decision in Shiv Kumar v. Jawahar Lal Verma (supra) which has been relied upon by the learned counsel for the opposite party no. 2 for submitting that the view taken by me is contrary to the view taken in this latest case decided on 14-9-1988. In paragraph 6 and 7 of the report, their Lordships have referred to the contentions of the contending parties and thereafter observed in paragraph 8 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 respondents 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 on the date the Act came into force. We may, however, say that we find ourselves in agreement with the pronouncement in Vineet Kumar's case, 1984 AWC 128, that the view taken in Om Prakash's case, 1982 AWC 226 was obiter dicta because as observed in the judgment, "it was not at all necessary in that case to deal with the question whether the appellant would be entitled to the benefit of section 39 as the building has not become ten years old on the date when the revision petition was heard." Be that as it may, even accepting the respondent's case that the Act would govern the suit, we find that the respondents cannot claim benefit under section 39 because of their belated deposit of the arrears of rent and interest......" 8. From the opening sentence of the above paragraph, it is apparent that their Lordships did not consider it necessary in this case to adjudicate upon the scope of section 39 because their Lordships found that even if section 39 was treated to be applicable, the tenant had not complied with the requirements of deposit of the amounts contemplated therein. From the opening sentence of the above paragraph, it is apparent that their Lordships did not consider it necessary in this case to adjudicate upon the scope of section 39 because their Lordships found that even if section 39 was treated to be applicable, the tenant had not complied with the requirements of deposit of the amounts contemplated therein. Thus, this judgment is not an authority for the proposition that section 39 applies even to suits filed subsequent to the enforcement of the Act. The judgment in this case as observed earlier, was delivered on 14-9-1988. The learned counsel for the tenant-opposite party however submits that by this judgment, the Bench has confirmed the view taken in Vineet Kumar's case and, therefore, Vineet Kumar's case becomes the latest to be followed. I am unable to agree with the submission of the learned counsel that the entire view expressed in Vineet Kumar's case has been confirmed by this judgment. The only view expressed in Vineet Kumar's case, which have been confirmed is that the finding in Om Prakash Gupta's case (supra) regarding applicability of section 39 to suits filed after 15-7-1972 was obiter. About the other finding in Vineet Kumar's case that section 39 applies also to suits filed after 15-7-1972, nothing has been said. Rather, the question has been specifically left open. 9. From the survey of the above decisions, it transpires that the latest case on the question of applicability of section 39 to suits filed after 15-7- 1972 continues to be Nand Kishore Marwah (supra). As observed earlier, in this case, it has been specifically said that section 39 does not apply to suits filed after 15-7-1972. When conflicting views have been expressed by different Benches of the Supreme Court of equal strength, the High Courts will have to follow the latest of such decisions. Marwah's case being the latest and I am bound to follow it. 10. The learned counsel for the landlord-petitioner has invited my attention to yet another case decided by a Bench of two Judges. This is Atma Ram Mittal v. Ishwar Singh Punia, 1988 (2) ARC 557. This case was decided on 22-8-1988 by a Bench of two Hon'ble Judges. Marwah's case being the latest and I am bound to follow it. 10. The learned counsel for the landlord-petitioner has invited my attention to yet another case decided by a Bench of two Judges. This is Atma Ram Mittal v. Ishwar Singh Punia, 1988 (2) ARC 557. This case was decided on 22-8-1988 by a Bench of two Hon'ble Judges. This was not a case under U. P. Act No. 13 of 1972 with which I am persently concerned but was a case under the Haryana Urban (Control of Rent and Eviction) Act, 1973. The provision of that Act which has been interpreted by their Lordships in this case is not parallel to sections 39 or 40 of the U. P. Act. It is, therefore, not necessary to make a detailed reference to this case. However, certain observations made in this judgment support the plea of the landlord- petitioner and these may be reproduced without comments. In paragraph 8 of the report, their Lordships have observed- "It is well-settled that no man should suffer because of the fault of the Court or delay in the procedure Broom has stated the maxim "actus curial neminem gravabit". Act of court shall prejudice no man. Therefore, having regard to the time normally consumed for adjudication, the 10 years exemption or holiday from the application of the Rent Act would become illusory, if the suit has to be filed within that time and so disposed of finally. It is common knowledge that unless a suit is instituted soon after the date of letting it would never be disposed of within 10 years and even then within that time it may not be disposed of. That will make the 10 years of holidays from the Rent Act illusory and provide no incentive to the landlords to build new houses to solve problem of shortages of houses. The purposes of legislation would thus be defeated. Purposive interpretation in a social amilioration legislation is an imperative irrespective of anything else". Again, in paragraph 9, it has been said- "If the immunity from the operation of the Rent Act is made and depended upon the ultimate disposal of the case within the period of exemption of 10 years which is in reality an impossibility, then there would be empty reasons. Again, in paragraph 9, it has been said- "If the immunity from the operation of the Rent Act is made and depended upon the ultimate disposal of the case within the period of exemption of 10 years which is in reality an impossibility, then there would be empty reasons. In our opinion, bearing in mind the well-settled principles that the rights of the parties crystalise to be date of the institution of the suit as enunciated by this Court in Om Prakash Gupta v. Dig Vijendrapal Gupta (supra), the meaningful construction must be that the exemption would apply for a period of 10 years and will continue to be available until suit is disposed of or adjudicated. Such suit or proceeding must be instituted within the stipulated period of 10 years. Once rights crystalise the adjudication must be in accordance with law". From the observations contained in paragraph 6 of the report, it is apparent that this two Judge Bench did not approve of the view taken in Vineet Kumar's case ; rather it agreed with the view expressed in Om Prakash Gupta and Nand Kishore Marwah (supra). The position now emerging is that in Vineet Kumar's case decided on 5-1-1984, it was held that Section 39 applied to suits filed after 15-7-1972 also. Contrary view has been taken in the subsequent case of Marwah decided on 17-9-1987 in which it has been specifically held that Section 39 does not apply to suits filed after 15-7-1972. This view has not been dissented from in any subsequent judgment. Vineet Kumar's case has been specifically dissented from in Atma Ram Mittal's case decided on 22-8-1988. All these decisions are by two Judge Benches of the Supreme Court. As already observed, I am bound to follow the latest decision. The latest decision is in Marwah's case which holds that Section 39 is not applicable to suits filed after 15-7-1972. I have deliberately omitted to mention herein Om Prakash Gupta's case decided by a three Judge Bench because the latest two Judge Bench which decided the case of Shiv Kumar has confirmed the view expressed in Vineet Kumar's case that the observations made in Gupta's case were obiter. This view is also binding on me. I have deliberately omitted to mention herein Om Prakash Gupta's case decided by a three Judge Bench because the latest two Judge Bench which decided the case of Shiv Kumar has confirmed the view expressed in Vineet Kumar's case that the observations made in Gupta's case were obiter. This view is also binding on me. However, the only consequence of holding that the view expressed in Om Prakash Gupta's case is obiter is that there is no binding decision in that case about the applicability or non- applicability of Section 39 to suits filed after 15-7-1972. By this, the legal position is not altered as the latest two Judge Bench has specifically held that Section 39 does not apply to suits filed after 15-7-1972. 11. My attention has however been drawn to two Single Judge decisions of this Court which apparently take conflicting views. One decision is by K. C. Agarawl, J. (now A C.J.) and the other is by S. D. Agarwala, J. The judgment of K. C Agarwal, J. in Smt. Indira Pathak v. Ilnd Additional District Judge. Allahabad, 1989 AWC 281 has been relied upon by the learned counsel of or the tenant for submitting that in this case it has been held that in Shiv Kumar's case, their Lordships have laid down that Section 39 applies even to suits filed after the enforcement of the Act. The judgment of S. D. Agarwala, J. in Ram Prakash v. IIIrd Additional District Judge, Agra, 1989 (1) ARC 101 has been relied upon by the learned counsel for the landlord for submitting that in this case, the view taken in Indira Pathak has not been approved and the matter has been referred to a larger Bench. In view of the judgment of S. D. Agarwala J., Sri S. C. Misra, learned counsel for the tenant opposite party pressed that either this case may also be referred to a larger Bench or the hearing of this case may be deferred. 12. Reference to a larger Bench may be necessary where there are two conflicting precedents of the same Courts. I have accordingly to find out whether the two decisions referred to by the learned counsel for the parties can be said to be precedents. 12. Reference to a larger Bench may be necessary where there are two conflicting precedents of the same Courts. I have accordingly to find out whether the two decisions referred to by the learned counsel for the parties can be said to be precedents. A judgment is precedent when it decides a controversy raised by the parties Where the parties do not raise any controversy on a particular point and the Court merely observes that point, that observation of the Court will not amount to a decision of the Court so as to be a precedent. In Indira Pathak's case approach to this Court had been made by the tenent to whom benefit of Section 39 was not given by the learned Additional District Judge, Allahabad probably relying upon Marwah's case (supra). Before K. C. Agarwal J, reference was indeed made to the case of O. P. Gupta, Nand Kishore Marwah, Shiv Kumar and Atma Ram (Supra), but it was not pressed by the counsel for either side that the latest decision of the Supreme Court on the question of applicability of Section 39 to suits filed after 15-7-1972 was in Marwah's case. Counsel for both the sides proceeded on the assumption that in Shiv Kumar's case, this controversy has been decided. It appears from the observations made in paragraph 15 of the report that instead of pointing out to the learned Judge that no decision has been given in Shiv Kumar's case regarding the applicability of Section 39, the learned counsel for the landlord-opposite party only argued that the observations in the said judgment were obiter. To this argument, the learned Judge has replied that even obiter dicta of the Supreme Court are binding upon the High Courts. Therefore, the question involved in the present case was not raised before K. C. Agarwal, J. in Indira Pathak's case and, therefore, his judgment cannot be said to be a precedent on the said controversy. If this judgment is not a precedent it is not necessary for me to recommend constitution of a larger Bench to decide this case as I am taking the view that Shiv Kumar's case has not reviewed the view taken in Vineet Kumar's case. Be that as it may, reference has been made by S. D. Agarwala, J. in Ram Prakash's case (supra) and a larger Bench may be constituted by Hon'ble Chief Justice. Be that as it may, reference has been made by S. D. Agarwala, J. in Ram Prakash's case (supra) and a larger Bench may be constituted by Hon'ble Chief Justice. S. D. Agarwala, J. has specifically gone into the controversy and come to the conclusion that Shiv Kumar's case is not an authority for the proposition that section 39 applies also to suits filed after 15-7-1972. With this view, I respectfully agree. However, the order of S. D. Agarwala, J. also cannot be said to be a precedent because he has not finally decided the case and has merely recommended constitution of a larger Bench to decide the case. 13. In view of the above, I do not consider it necessary either to defer the hearing of this petition or to direct reference of the case to a larger Bench. 14. The next controversy raised by the learned counsel for the petitioner is with regard to the date from which the period of ten years is to be computed. The trial Court has recorded the finding that the first assessment of the building was made on 1-4-1976. This finding has not been shown to be incorrect. It has been held by their Lordships of the Supreme Court in Nand Kishore Marwah v. Samundari Devi (supra) that the period of ten years is to be computed from the date of first assessment. In view of this authority, the finding on the question of the Act becoming applicable to the accommodation in question does not suffer from any infirmity. Sri S. C. Misra, learned counsel for the tenant-opposite party now submits that the case may be remanded to the learned Additional District Judge for recording findings on the questions which were not dealt with by him in view of the finding recorded in favour of the tenant-opposite party. I would have accepted the submission of the learned counsel if any disputed question had survived for determination, but I find that no such question survives. The learned counsel however points out that the tenant-opposite party had denied that landlord's allegation of sub-letting the accommodation in question and this question had not been gone into by the learned Additional District Judge. Sub-letting is one of the grounds of claiming eviction under Section 20 of the Act from accommodations covered by the Act. The learned counsel however points out that the tenant-opposite party had denied that landlord's allegation of sub-letting the accommodation in question and this question had not been gone into by the learned Additional District Judge. Sub-letting is one of the grounds of claiming eviction under Section 20 of the Act from accommodations covered by the Act. Since the present accommodation was not covered by the Act at the time of the institution of the suit and it will remain exempted from the operation of the Act during the pendency of the suit, the question of sub-letting is redundant. From accommodations not covered by the Act, the landlord can claim eviction merely by termination of tenancy under Section 106 of the Transfer of Property Act without assigning any reason for claiming eviction. 15. It is next submitted that questions pertaining to arrears of rent and service of notice also require consideration. In paragraph 7 of the plaint Annexure-1, the landlord-petitioner indicated the amount of rent and mesne profits due from the tenant-opposite party, In the prayer clause, decree for the amount was claimed In the written statement, this claim was not contested by the tenant-opposite party. The trial Court decreed the claim and the memorandum of revision filed by the tenant-opposite party Annexure- 4 does not contain any challenge against this part of the decree. Accordingly, there is nothing to be decided by the Additional District Judge in respect of the money claim preferred by the landlord-petitioner. 16. Service of notice under Section 106 of the Transfer of Property Act was alleged by the plaintiff-petitioner in paragraph 5 of the plaint. Reply to this paragraph is contained in paragraph 5 of the written statement, Annexufe-2 in which after admitting service of notice, the tenant-opposite party has stated that he sent reply to the notice on 6-1-1984. Reference to this reply has been made in paragraph 5 of the counter-affidavit filed by the tenant-opposite party in this Court. In paragraph 5 of the written statement, the tenant-opposite party did challenge the validity of notice but that challenge was not repeated in the memorandum of revision Therefore, even the validity of notice is not the subject-matter of challenge before the Additional District Judge. 17. In paragraph 5 of the written statement, the tenant-opposite party did challenge the validity of notice but that challenge was not repeated in the memorandum of revision Therefore, even the validity of notice is not the subject-matter of challenge before the Additional District Judge. 17. From the above discussion, it would be seen that there is no controversy which now requires determination and, therefore, the demand for remand made by the learned counsel is entirely unjustified. 18. In view of the above, the petition is allowed and the judgment and order dated 2-2-1986 passed by the Vllth Additional District Judge, Lucknow in Section 25 revision no. 68 of 1986 is hereby set aside and the judgment and decree dated 19-3-1983 passed by the trial Court in Small Cause Suit no. 65 of 1984 is hereby restored. However, there shall be no order as to costs. Opposite party no- 2 is allowed three months time to handover vacant possession of the accommodation in question to the plaintiff. This time will be available to opposite party no. 2 only if he deposits the entire decretal amount and damages for use and occupation upto 31-7-1989 by 18-8-1989 in the trial Court and continues to deposit the damages for use and occupation accruing due thereafter by 7th of the succeeding months. In case of default in observance of the terms of this order, the time allowed to opposite party no. 2 to vacate the accommodation shall not be available to him. Opposite party no. 2 need not deposit any amount which he has already deposited either under Order XV rule 5 of the Code of Civil Procedure or under the orders of the trial Court or the revisional Court. Certified copy of this judgment shall be supplied to the learned counsel for the parties within three weeks on their furnishing requisite charges.