Judgment : B. K. Singh, J. 1. The petitioner, who is the owner-landlord of the accommodation 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 judgment 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 pendency 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. 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 Sections 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. 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 Additional 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 respondent 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. I have heard the learned counsel of the petitioner. No one has put in ap pearance on behalf of the respondent. 3. THE learned counsel for the petitioner has submitted that the Hon'ble Supreme Court has itself in subsequent decision overruled the decision rendered by it in Vineet Kumar's case (supra ). First decision, on the point, is reported in 1982 (2) ARC 361 - Nand Kishore Marwah and others v, Smt. Samundari Devi. In the said decision the Hon'ble Supreme Court interpreting Section 39 of U. P. Act No. XIII of 1972 held that Section 39 of the Act applies to those suits which were pending on the date of the commencement of the U. P. Act No. XIII of 1972. Since in this case the suit was not pending on the date when U. P. Act No. XIII of 1972 came to apply to the accommodation then the provision of Section 39 will not come to the assistance of the tenant respondent No. 2. THE learned counsel has placed reliance on the case reported in 1990 (1) ARC 233 - Suresh Chand v. Gulam Chisti. THE Hon'ble Supreme Court has laid down the conditions under which the provisions of Section 39 of the Act will apply. One of such conditions is that the deposit is made within one month from the date of the commencement of the Act. Since that condition did not apply to the facts of the present case the benefit of Section 39 will not be available to the respondent No. 2. One of such conditions is that the deposit is made within one month from the date of the commencement of the Act. Since that condition did not apply to the facts of the present case the benefit of Section 39 will not be available to the respondent No. 2. According to this decision of the Hon'ble Supreme Court the benefit of Sections 39 and 40 of the U. P. Act No. XIII of 1972, as per the Legislature's intention in, was to limit the benefit on the date of commencement of the Act, i.e., on 15-7-1972. According to the learned counsel of the petitioner, the decision of the 1st Additional District Judge, Kanpur on the basis of Vineet Kumar's decision of the Hon'ble Supreme Court (supra) is thus rendered erroneous in law and it thus liable to be set aside and that of the trial court is liable to be maintained. 4. 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 construction 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. 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, according 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. The learned Additional District Judge, Kanpur took the view that the respondent No. 2, on account of the deposits made by him within one month from date of completion of ten years period and applicability of the U. P. Act No. XIII of 1972 gains protection of the Sections 39/40 of the Act and his liability of ejectment under law stands relieved. For concluding this aspect of the matter the learned Additional District Judge had rightly applied the ratio of the two decisions, that is, Dharm Pal Gupta and Vineet Kumar (supra) as those decisions held that in such a situation the tenant’s liability of ejectment stood relieved. But the view taken by the Hon'ble Supreme Court in its earlier decision came for reconsideration firstly in the decision rendered by the Hon'ble Supreme Court in the case of Nand Kishore Marwah and others (supra ). A distinction was made. The Hon'ble Supreme Court held as under:- "section 39 of the Act 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 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. " Dealing with Section 40 of the Act the Hon'ble Supreme Court in the same decision held as under": "section 40 of the Act talks of the pendency of a revision or an appeal arising out of a suit pending on the day on this Act came into force. " Dealing with Section 40 of the Act the Hon'ble Supreme Court in the same decision held as under": "section 40 of the Act talks of the pendency of a revision or an appeal arising out of a suit pending on the day on this Act came into force. It is clear that provisions of Section 40 will come to the rescue of the appellant only if the suii from which revision or appeal arose was pending on the date of commencement of this Act i.e., 15-7-1972. " The Hon'ble Supreme Court also considered scope of Section 20 which places restriction of landlord's right to evict. It was held as under: "keeping in view the language of Section 20, it becomes clear that for a newly constructed building the provisions of this Act will not apply for 10 years and, therefore, so far as the restriction under Section 20 is concerned they will not apply and, therefore, it is clear that within 10 years as provided for in clause (2) of Section 2 restriction on the institution of suit as provided for in Section 20. Clause (1) will not be applicable and it is, thus, clear that during the pendency of the litigation even if 10 year expired the restriction will not be attracted as the suit has been instituted within 10 years and, therefore, restriction as provided for in Section 20 cannot be attracted. " 5. THE same question again came up for consideration before the larger Bench of the Hon'ble Supreme Court in the case of Suresh Chand (supra ). " 5. THE same question again came up for consideration before the larger Bench of the Hon'ble Supreme Court in the case of Suresh Chand (supra ). THE Hon'ble Supreme Court held as under:- "the plain reading of Section 39 makes it clear that the said sections Obliges the court to refuse to pass a decree for eviction, except on any of the grounds mentioned in the proviso to sub-section (1) or in clauses (b) to (g) of sub-section (2) of Section 20, if the following four requirements are satisfied - (i) the building is one to which the old Act (the U. P. (Temporary) Control of Rent and Eviction Act, 1947) did not apply; (ii) the eviction suit must be pending on the date of commencement of the Act, i.e., 15th July, 1972; (iii) the tenant deposits in Court the entire amount of rent/damages for the use and occupation of the building together with interest at 9% per annum and the landlord's full cost of the suit; and (iv) such deposit is made within one month from the date of commencement of the Act or from the date of knowledge of the pendency of the eviction suit, whichever is later. " 6. THE Hon'ble Supreme Court further considered as to when benefit of Sections 39 and 40 will be available. It held as under:- "section (2) in terms says that the provisions of the Act will not apply to new constructions for a period of ten years from the date of completion of the construction. Read positively it means that the Act will apply to such buildings on the expiry of the recess period. But how are suits already filed during the recess period to be dealt with? Does the Act after any clue in his behalf? In this connection the only provisions which come to mind are Sections 30 and 40 of the Act. Section 39 deals with suits pending on the date of commencement of the Act. Section 40 extends protection to an appeal or revision pending on the date of commencement -of the Act provided it has arisen out of an eviction suit filed against a tenant to which the old Act did not apply. Such an appeal or revision has to be disposed of in the same manner as the suit is required to be dealt with under Section 39 of the Act. Such an appeal or revision has to be disposed of in the same manner as the suit is required to be dealt with under Section 39 of the Act. In order to secure the benefit of Section 39 or 40 it most be shown that the suit, appeal or revision was pending on the date of commencement of the Act, Secondly, if the suit is founded on the allegation of non-payment of rent, the tenant, within one month from the date of commencement of the Act or from the date of knowledge of the pendeny of the suit, deposits in Court the entire amount of rent and damages for use and occupation of the building with interest as prescribed and landlord's entire cost of the suit, to take the benefit of the said provision. If both these conditions are satisfied, the law, Section 39, mandates that no decree for eviction shall be passed except on any of the grounds specified in the proviso to sub- section (1) or clauses (b) to (g) of sub-section (2) of Section 20 of the Act. Similarly Section 40 lays down that if an appeal or revision (arising our of a suit for eviction of a tenant from any building to which the old Act does not apply) is pending on the date of commencement of the Act, the benefit of Section 39 will be available to the tenant. What these two provisions emphasise is that in order to avail of the benefit engrafted therein, the proceedings, i.e., the suit appeal or revision application must be pending at the date of commencement of the Act, i. e., 15th July, 1972, and the tenant must have deposited the arrears of rent and damages together with interest and full cost of the landlord in the Court within one month from the date of such commencement. Once the four conditions of S. 39 are satisfied, the court is debarred from passing a decree in ejectment except on any of the grounds mentioned in the proviso to sub-section (1) or in clauses (b) to (g) of sub-section (2) of Section 20 of the Act. Once the four conditions of S. 39 are satisfied, the court is debarred from passing a decree in ejectment except on any of the grounds mentioned in the proviso to sub-section (1) or in clauses (b) to (g) of sub-section (2) of Section 20 of the Act. Therefore, even in suit, appeal or revision application pending at the date of commencement of the Act, a decree for eviction can be passed if the case if brought within the exemption clause of Section 39 not withstanding the fact that the tenant has deposited the full amount of arrears of rent and damages together with interest and cost as required by, that section. It, therefore, seems clear on the plain language of Section 39 of the Act that the Legislature desired to grant protection from eviction where the same was sought on the sole ground of arrears of rent. In cases falling within the exemption clause of that section, the Legislature has itself permitted the landlord to proceed with the suit and claim eviction on any of the grounds enumerated in the proviso to sub-section (1) or in clauses (b) to (g) of sub-section (2) of Section 21 of the Act, if necessary by making the required amendment in the pleadings and by educing additional evidence where necessary. " On consideration of the above findings of the Hon'ble Supreme Court in the above two cases now it is clear that the respondent No. 2 could not have been relieved of his liability of ejectment because the conditions which are relevant for attracting provision of Sections 39 and 40 of the U. P. Act No. XIII of 1972 are not [available in the present case. Admittedly the Suit was filed within ten years from the date of completion of the accommodation in question. The said date of institution of the suit was long after enforcement of the Act No. XIII of 1972, Consequently the benefit of Sections 30/40 of the Act cannot be extend in the suit filed by the petitioner to the respondent No. 2 necessary conditions, as held in the case of Suresh Chand (supra) are missing. The said date of institution of the suit was long after enforcement of the Act No. XIII of 1972, Consequently the benefit of Sections 30/40 of the Act cannot be extend in the suit filed by the petitioner to the respondent No. 2 necessary conditions, as held in the case of Suresh Chand (supra) are missing. Further long before filing of the revision U. P. Act No. XIII of 1972 had commenced in its application to the State of U. P, As pointed out by the Hon'ble Supreme Court, the Legislature's intention was to limit benefit of Sections 39 and 40 of the U. P. Act No. XIII of 1972 to only such suits, appeals and revisions which were pending on the date of commencement of the Act and not to those which were to be filed at a subsequent date. 7. AS stated by the Hon'ble Supreme Court in the case of Nand Kishore Marwah and others (supra), benefit of Section 20 would also not be available to the respondent No. 2. The result is that it may be that the view taken by the learned 1st Additional District Judge on the date when he passed the judgment was correct but know in view of the change of the view of the Hon'ble Supreme Court itself, the judgment of the learned 1st Additional District Judge becomes contrary law. Accordingly, I am of the view that said judgment is liable to be set aside. 8. IN view of the above, the writ petition is allowed. The judgment and order listed 20-11-1985 passed by the learned 1st Additional District Judge, Kanpur is hereby quashed. Let a certiorari be issued and the judgment and order dated 18-9-1981 passed by Additional Judge, Small Cause Courts, Kanpur is hereby restored. (Considering the circumstances of the case and as the respondent No. 2 has not come to contest the writ petition relieve him from the liability of the costs of this writ petition. Petition allowed.