Judgment:
Anjani Kumar, J.
1. By means of present writ petition under Article 226 of the Constitution of India, the petitioner-tenant challenges the order passed by the trial Court as well as revisional Court.
2. The facts leading to the filing of the present writ petition are that the landlord-respondent filed a suit before the Judge, Small Causes Court for the ejectment of the petitioner-tenant from the shop in dispute in which the petitioner was the tenant of a monthly rent of Rs. 5/- after terminating the tenancy of the petitioner by notice under Section 106 of the Transfer of Property Act. The plaintiff-landlord has taken up the case that the property in question vests in Public Charitable Religious Trust, therefore the provisions of U.P. Act No. 13 of 1972, which shall here-in-after referred to as the 'Act', are not applicable. Building owned by Public Religious Trust and Public Charitable Trust are exempted from the application of the provisions of U.P. Act No. 13 of 1972 by virtue of the provisions of Sub-clauses (bb) and (bbb) of Section 2 (1) of amended Act, which has been brought into the Statute Book by U.P. Act No. 5 of 1995. The petitioner-tenant denied the allegations made by the plaintiff and has also taken up a stand that the provisions of the Act are applicable and he has deposited the entire arrears of rent under Section 30 of the Act, therefore he has not committed and default, as alleged by the plaintiff and since the provisions of the Act are applicable, no suit can be filed for eviction of the petitioner-tenant, except on the grounds specified under Sub-section (2) of Section 20 of the Act, no such grounds are made out by plaintiff. In any view of the matter, since the petitioner-tenant has deposited the entire arrears of rent, in a proceeding under Section 30 of the Act, no decree of ejectment can be passed against the petitioner-tenant. Some other grounds were also taken up by the petitioner-tenant with regard to maintainability of the suit. The trial Court after exchange of the pleadings by the parties has recorded a categorical finding on issue nos. 1 and 2 regarding applicability of the Act to the tenancy in question and summed up that the provisions of the Act do not apply to the tenancy in question. The trial Court also arrived at the finding that the tenancy has been terminated by serving a valid notice under Section 106 of the Transfer of Property Act and since U.P. Act No. 13 of 1972 are not applicable, the petitioner-tenant cannot get any benefit out of the alleged deposit in a proceeding under Section 30 of the Act, thus, the trial Court decreed the suit.
3. Aggrieved by the decree of the trial Court, the petitioner-tenant preferred a revision under Section 25 of the Provincial Small Cause Courts Act before the revisional Court. The Revisional Court affirmed the findings arrived at by the trial Court with regard to the applicability of the U.P. Act No. 13 of 1972 and also regarding the termination of the tenancy by a valid notice under Section 106 of the Transfer of Property Act. Thus, the revision filed by the petitioner-tenant was dismissed by the revisional Court.
4. Sri B.D. Mandhyan, learned Counsel appearing on behalf of the petitioner-tenant contended that the provisions of U.P. Act No. 13 of 1972 as inserted by the amendment by U.P. Act No. 5 of 1995 is ultra virus in view of the recent decision of the Kerala High Court reported in (1992) 1 Ker LT, 85 (FB) Lakshmanan v. Mohamood. The aforesaid decision of the Kerala High Court was the subject matter of an appeal before the apex Court and the judgment of the apex Court is reported in AIR 2001 Supreme Court, 2543 : 2001 SCFBRC 419, Christ the King Cathedral v. John Andheri and Anr., wherein the judgment of the Kerala High Court was reversed by the apex Court.
5. Learned Counsel appearing on behalf of the respondent-landlord relied upon a decision of this Court reported in 1999 (1) ARC, 408 U.P. Cooperative Bank Ltd., Lucknow v. Smt. Urmila Singh and 1999 (2) ARC, 483 Nand Kishore Gosaeen and Ors. v. State of U.P. and Ors., wherein the virus of amendments brought in the provision of U.P. Act No. 13 of 1972 by U.P. Act No. 5 of 1995 has been upheld. Thus, in my opinion, the contention raised on behalf of learned Counsel for the petitioner-tenant regarding the validity of the amendment cannot be gone into, as the same has already been upheld by this Court. This contention of Sri Madhyan therefore deserves to be rejected and is hereby rejected. It is then contended that the trial Court as well as the revisional Court have erred in arriving at the conclusion that the petitioner-tenant is in arrears of rent and that the suit was not maintainable because all the heirs of the original tenants have not been impleaded as defendants. The trial Court has recorded a categorical finding that it is the petitioner Jugal Kishore, who became the sole tenant after the death of his father the original tenant and. he is regularly paying the rent, which has been accepted by the landlord, therefore, the suit cannot be said to be bad for non-joinder for the other heirs of the deceased-original tenant. So far as the finding regarding the waiver of the notice and the deposit of the amount under Section 30 of the Act, the same will not help the petitioner because the trial Court has recorded finding against the petitioner-tenant, which has been affirmed by the revisional Court, the same cannot be interfered with by this Court in exercise of power under Article 226 of the Constitution of India by sitting in appeal over the findings arrived at by the trial Court and affirmed by the revisional Court. This argument of learned Counsel for the petitioner-tenant therefore, also deserves to be rejected and is hereby rejected.
6. Lastly, it is submitted by learned Counsel for the petitioner-tenant that since the tenant is carrying on his business from the shop in question, he may be given some time to vacate and handover the same to the landlord. Considering the facts and circumstances of the and also in the interest of justice, I direct that the order of eviction against the petitioner-tenant shall not be executed till 31st December, 2005 on the following condition:-
(i) the petitioner-tenant shall furnish an undertaking before the prescribed authority within a period of one month from today to the effect that the petitioner-tenant shall handover the peaceful possession of the shop in question on or before 31st December, 2005 to the landlord; and
(ii) the petitioner-tenant will deposit the entire rent/damages at the rate of rent till date, if not already deposited or paid to the landlord within one month and continue to deposit the same as and when the same falls due by the first week of each succeeding month so long he remains in possession or till 31st December, 2005, whichever is earlier; or
(iii) in the event of default of any of the conditions mentioned above, it will be open to the landlord to get the order of eviction executed.
7. In view of what has been stated above, this writ petition has no force and is accordingly dismissed, except as ordered above. The interim order, if any, stands vacated. However, there will be no order as to costs.