O. P. Garg, J.
1. The petitioner who admittedly is the tenant tn a portion (shop) of premises No. 1856 situated in mohalla Cantonment. Station Road, Banda, has challenged the order dated 3.8.2000 passed by the trial court in S.C.C. Suit No, 4 of 1998 and the order dated 19.1.2001 passed tn Revision Application No. 48 of 2000 under Section 25 of the Provincial Small Causes Courts Act. It is prayed that both the orders being illegal and without jurisdiction be quashed and the respondent No. 3 be commanded not to disturb with the possession of the petitioner over the tenanted accommodation.
2. At the initial stage of filing of the present petition, appearance was put in on behalf of the landlord respondent No. 3 through Sri Rajesh Tandon, senior advocate assisted by Sri Pankaj, Srivastava. He made a statement that the petition be finally disposed of on merits on the basis of the material available on record. Sri M. A. Qadeer, learned counsel for the petitioner did not have any objection to it and consequently. I proceeded to dispose of the petition on merits at this stage.
3. Sri Qadeer took two distinct pleas to assail the decree passed in S.C.C. Suit No. 4 of 1998 as affirmed in S.C.C. Revision No. 48 of 2000 ; firstly that the provisions of the U. P. Act No. 13 of 1972 (hereinafter called the Act of 1972) are applicable to the tenanted accommodation and since the petitioner has cleared all the dues, as demanded by the respondent No. 3 within the period stipulated in the composite notice of demand and to quit, no order of eviction could be passed, as the possession of the petitioner is statutorily protected under the provisions of Section 20 (2) (a) of Act of 1972, and secondly that even if it be held that the Act of 1972 did not apply to the tenanted accommodation, the contract of tenancy being in contravention of the provisions of Sections 11, 13 and 17of the Act of 1972, it cannot be enforced by the landlord in view of the Full Bench decision of this Court in the case of Nutan Kumar and others v. Second Additional District Judge, Banda and others, 1993 All CJ 721.
4. Both the above submissions were repelled by Sri Rajesh Tandon appearing on behalf of respondent No. 3.
5. After having heard learned counsel for the parties, I find that the crucial question for determination in the present petition is whether the provisions of Act of 1972 are applicable to the tenanted accommodation or not? To begin with, it may be mentioned that it is a common case of the parties that the building bearing No. 1856 situated in mohalla cantonment. Station Road, Banda, has been in existence for more than 20 years prior to the commencement of the Act. The case of the landlord respondent No. 3 is that the disputed tenanted portion has been constructed a new in the year 1990 and after the reconstruction of the new portion, it was let out to the petitioner on 1.5.1990.
6. Sri Qadeer took me in the historical retrospect of the litigation with regard to premises No. 1856 which was earlier under the tenancy of one Jhon Mal Dayal Das, against whom late Narendra Nath Mitra, father of respondent No. 3 had instituted S.C.C. Suit No. 838 of 1969 for eviction. In that suit, controversy was raised whether the provisions of U. P. Act No. 3 of 1947 were applicable to the accommodation under the tenancy of Jhon Mal Dayal Das. It was held that the Act of 1947 did not apply and a decree of eviction was passed against Jhon Mal Dayal Das. Inspite of the decree of ejectment. Jhon Mal Dayal Das was successful in getting the tenanted accommodation allotted in his favour in the year 1976. After protracted litigation the allotment order was cancelled on 1.1.1979 and the landlord came in occupation of the portion which was in possession of Jhon Mal Dayal Das. In this mannerit is well established that provisions of Act of 1972 apply to premises No. 1856 of which Jhon Mal Dayal Das was the tenant and against whom a decree for eviction was passed. In view of the above facts, Sri Qadeer maintained that since the tenanted accommodation in occupation of the petitioner is part of the old premises No, 1856, the provisions of Act of 1972 would be attracted. He, however, made a reference to the fact that the landlord had taken permission for putting up a new slab on the existing walls and the permission was readily accorded by the Municipal Board on 27.7.1989, and since the tenanted accommodation has come into being by putting up the slab on the old walls, the provisions of the Act of 1972 would be applicable as it was only a minor part of the addition to the existing building. Sri Qadeer founded his submission on the provisions of Section 2 (2) Explanation I (c) of Act of 1972 which reads as follows :
'2. Exemption from operation of Act.'--(I) Nothing in this Act shall apply to the following, namely :
(a) .............................
(f)................................
(2) .........................
Explanation I :
(a) ...............................
(b) ...............................
(c) where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of thesaid addition.'
7. The attention of this Court was invited by Sri Qadeer to the plan (Annexure-2 to the petition) submitted by the petitioner for approval on 24.7.1989 in which a R.B. Slab was proposed to be put up on existing walls of ground floor. In support ofhis contention that putting up a slab on the existing walls would not lake out the tenanted accommodation from the operation of the Act of 1972, reliance was placed by Sri Qadeer on the decision in AIR 1953 Ajmer 54 (1) (Vol. 40 CN 59) in the case of Durgah Khwaja Sahib v. Ram Gopal Mehra. That was a case pertaining to the interpretation of the provisions of Section 7 of Delhi and Ajmer Merwara Rent Control Act. In that case previously there was one shop which caught fire, then the walls above a height of 4-1/2 feet were demolished. The one shop previously existing was converted into three shops by erecting two partition walls. The foundation remained as it was. Up to a height of 4-1/2 feet the walls remained as they were except for new plastering. In the background of these facts it was held that it was a case of improvement as the various additions, alterations or improvement were made on the previous existing structure and complete structure was not demolished or replaced. This case does not apply to the facts of the present case. The other case relied upon on behalf of the petitioner is Shyam and others v. IIIrd Addl. District Judge, Orai, 1984 (1) ARC 241, in which it was observed that certain changes made in the existing shop shall not exempt it from the operation of the Act, in the absence of further finding that the shop was got demolished and a fresh construction was made, or that the changes made in the shop were such as were contemplated by clause (c) of Explanation I.
8. In AschchraJ Lal v. Laxmi Chand Sharma. 1978 (2) AIRCJ 195, it was held that as the major portion of the demised premises was on old construction the tenant was entitled to the benefit of Section 39 of Act of 1972. In another case Om Prakash and others v. VII Addl. District Judge, Aligarh and others. 1994 (23) ALR 19, it was held that alteration made in garage and laying of new roof and affixing shutters would not amount to a new construction and shall continue to be governed under the provisions of Act of 1972.
9. I have waded through all the above decisions and find that for one reason or the other, observations made therein are not squarely applicable to the case in hand.
10. There is no doubt about the fact that the burden of proof lies heavily on the landlord to show that a particular building stands exempted from the operation of the Act. In the instant rase, concurrent finding of fact has been recorded by the two courts below that the tenanted accommodation came into occupation of the petitioner after it was reconstructed in the year 1990. The petitioner was its first occupant. A firm finding of fact has been arrived at by the trial court after appraising the evidence on record led by the parlies that all the walls of the tenanted accommodation are new Ones, the original level was also changed, by the side of the one of the walls a new staircase was put up. There has been a substantial addition in relation to the tenanted accommodation. In an existing building, the addition of the tenanted accommodation was completely new. The revisional court though was not required to reassess and reappraise the evidence, has also held that the tenanted accommodation was the product of reconstruction.
11. The expression 'substantial addition' occurring in Section 2 (2). Explanation I (c) includes not merely the addition of wholly a new construction, but where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition.
12. The above observation came to be made in the case of Jagdish Prasad v. District Judge. Ghaziabad and others, 1980 All LJ 229. The matter also came up for consideration in a subsequent case of Phool Chand v. IIIrd Addl. District Judge, Agra and others, 1995 (2) ARC 549, in which it was observed that the word substantial addition as used in clause(c), Explanation (1) to Section 2 (2) of the U. P. Act No. 13 of 1972 will take within its ambit not merely the addition of wholly a new construction but also the alteration of an existing building into a new accommodation by remodelling it, which may include the use of some parts of the old structure.
13. Sri Qadeer placed reliance on the fact that the plan (Annexure-2 to the petition) indicates that the landlord has proposed to put up a slab on the existing four walls and, therefore, the finding of fact recorded by the two courts below was manifestly erroneous. It is true that the plan was got sanctioned for putting up a slab, but nevertheless the fact 'remains that the landlord respondent No. 3 had lowered the floor, constructed the walls a new and put up a side staircase and capped them with a new slab. This part of the evidence of the landlord has been accepted as believable by the trial court as well as the revisional court. Sri Tandon pointed out that even if no plan was got sanctioned but as a fact the landlord has carried out the work of new construction provisions of Act of 1972, would not be applicable and in support of his submission he placed reliance on the unreported decision dated 23.5.1995 of this Court in C.R. No. 861 of 1991, Abdul Gafoor v. Vakilur Rehman.
14. In my quest to reach the truth, I have scrutinised the evidence as well as the findings recorded by the trial court and as affirmed by the revisional court and find that they do not suffer from any infirmity or legal defect. On factual matrix, it stands well established that the tenanted accommodation was constructed during the period 1989-90 and after the completion of the construction, the petitioner was let into possession as a tenant on 1.5.1990 and thus the provisions of Act of 1972 were not applicable to the tenanted accommodation.
15. Now it is the time to consider the plea taken by Sri Qadeer that the agreement of lease between the petitioner and the respondent No, 3 being void is unenforceable in law. Insupport of his submission Sri Qadeer placed reliance on a Full Bench decision of this Court in the case of Nutan Kumar and others v. Second Additional District Judge, Banda and others, 1993 All CJ 721. The provisions of Sections 11, 13 and 17 falling in Chapter III of the Act, were interpreted in the said decision and it was held that the agreement of lease between the landlord and the tenant in contravention of the provisions of the Act, would be void and, therefore, unenforceable. The submission of Sri Qadeer that the petitioner cannot be evicted in view of the agreement which is void, does not go too far. The ratio of Nutan Kumar's case (supra) is applicable only if the provisions of the Act are found applicable to the tenanted accommodation. In view of the concurrent finding of fact that the provisions of the Act are not applicable to the tenanted accommodation, reference to Nutan Kumar's case (supra) is otiose. The suit has been filed within ten years of the construction of the tenanted accommodation after determining the tenancy under Section 106 of the Transfer of Property Act. Since the relationship of landlord and tenant subsists between the parties, the suit for ejectment could be maintained in the Court of Judge Small Causes Court and a regular suit for ejectment was not required to be filed.
16. Both on legal and factual matrix, the petition fails. It is devoid of any merits and substance. It is accordingly dismissed without any order as to costs.
17. After delivery of this judgment. Sri M. A, Qadeer learned counsel for the petitioner prayed that some time may be allowed to the petitioner to vacate the accommodation in respect of which the order for ejectment has been made. Sri Rajesh Tandon, learned counsel for the contesting respondent No. 3 states that he has no objection if some reasonable time is allowed to vacate the accommodation.
18. After having heard the learned counsel for the parties. I find that it would be proper if the petitioner is permitted to vacate the disputedaccommodation in respect of which the order of ejectment has been passed and has been affirmed in revision by 31st December. 2001. In case the petitioner does not deliver vacant possession on or before the said date, the decree shall become executable according to law.