Purshotam Dass Vs. Smt. Vidyawati and ors. - Court Judgment

Excerpt:
- tarun agarwala, j.1. the plaintiff filed a suit against the defendant for recovery of arrears of rent, and for ejectment from the premises in question. the plaintiff alleged that he is the landlord and that the defendant is the tenant in the premises in question and that the plaintiff gave a notice terminating the tenancy of the defendant on the ground that the arrears of rent had not been paid. it was also stated that the building was constructed in the year 1977 and therefore, the building was not ten years old and therefore the provisions of u. p. act no. 13 of 1972 was not applicable (hereinafter referred to as the act), the defendant contested the suit and denied the allegations made by the plaintiff and contended that the building in question was constructed in the year 1972-73 and the provisions of u. p. act no. 13 of 1972 was applicable. the defendant further alleged that he was not a defaulter and that the landlord refused to accept the rent and, accordingly, the defendant deposited the rent under section 30 of the act.2. the judge small cause court after determining the points in issue, decreed the suit, holding that the defendant was in arrears' of rent and that the notice under section 106 of the transfer of property act was a valid notice and had validly terminated the tenancy of the tenant. the judge small cause court further held that the building in question was constructed in the year 1977 and was occupied by the tenant in the year 1978 and, therefore, the provisions of u. p. act no. 13 of 1972 was not applicable. the trial court further held that the benefit of section 39 of the act was not available to the tenant.3. aggrieved by the decision of the judge small cause court, the petitioner has filed the present revision under section 25 of the provincial small cause courts act.4. heard, the learned counsel for the parties.5. the learned counsel for the tenant submitted that during the pendency of the proceedings before the trial court, the building in question completed 10 years of its existence and, therefore, the act became applicable and the tenant was entitled to seek the protection under the act. the tenant, therefore, could not be evicted from the premises in question, except in accordance with the provision of section 20 of the act. the learned counsel further submitted that the benefit of section 39 of the act should also be given to the tenant. in support of his submission, the learned counsel has relied upon the decision of the supreme court in vineet kumar v. mangal sain, air 1985 sc 817.6. in my view, the submission raised by the learned counsel is devoid of any merit and is liable to be rejected.7. section 2 (2) of the act reads as under :'except as provided in sub- section (5) of section 12, sub- section (1a) of section 21, sub- section (2) of section 24, sections 24a, 24b, 24c or sub-section (3) of section 29, nothing in this act shall apply to a building during a period of ten years from the date on which its construction is completed.(a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of surviving the construction or guarding the building under construction) for the first time.'8. it is clear that u. p. act no. 13 of 1972 will not apply to a building during the period of 10 years from the date on which its construction is completed. the explanation to this section makes it apparently clear that the period of ten years will start from the date of the first assessment and in the absence of such assessment, from the date on which it was actually occupied.9. in the present case, the findings of the court below are that the premises was constructed in the year 1977 and was occupied by- the petitioner for the first time in the year 1978. the suit was filed in the year 1984. thus, the suit was filed within 10 years of the completion of the premises in question and therefore, the u. p. act no. 13 of 1972 was not applicable to the premises in question on the date when the suit was filed by the landlord.10. the contention that during the pendency of the litigation, the period of 10 years had elapsed and therefore, the act became applicable and that the tenant could not be evicted except on the grounds mentioned in section 20 of the act is devoid of any merit.11. in vineet kumar's case (supra), the supreme court held that since the building completed 10 years of its existence during the pendency of the suit, the act became applicable and therefore, the tenant was entitled to seek the protection of the act. the supreme court held that the tenant could not be evicted from the premises in question except on the grounds mentioned in section 20. since the tenant had deposited the arrears of rent, damages and interest, the benefit of section 39 was available to the tenant.12. in nand kishore marwah and ors. v. samundri devi, (1987) 4 scc 382, the supreme court dissented with its earlier judgment in vineet kumar's case (supra), and held :'keeping in view the language of this section if we examine the provisions contained in sub-section (2) of section 2 it will be 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 sub-section (2) of section 2 restriction on the institution of suit as provided for in section 20 sub-section (1) quoted above will not be applicable and it is thus clear that during the pendency of the litigation even if 10 years 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.'13. similar view was again expressed by the supreme court in atma ram mittal v. ishwar singh punia, air 1988 sc 2031, impliedly overruling vineet kumar's case, and in suresh chand v. gulam chistt, 1990 (1) arc 233 and in ramesh chandra v. iiird additional district judge and ors., (1992) 1 scc 751, and again by the supreme court in bhola nath varshney v. mulk raj madan, (1994) 2 scc 127, the supreme court, in kishan alias srikishan kumar v. manoj kumar, air 1988 sc 999, overruled vineet kumar's case and held that a suit instituted during the period of exemption could be continued and a decree passed therein could be executed even though the period of exemption come to an end during the pendency of the suit.14. in nand kishore marwah's case (supra), the supreme court held that the rights of the parties will be determined on the basis of right available to them on the date of the suit. the supreme court further held that section 39 of the act would be applicable to those suits, which were pending on the date of the commencement of the date, i.e., 15th july, 1972.15. in view of the decisions given by the supreme court, the position that emerges is, that, the benefit available under section 39 of the act is only applicable to those suits, which were pending on the date of commencement of the act, i.e., 15th july, 1972. if the suit was pending on 15th july. 1972, only then, the benefit of section 39 of the act was available to the tenant. in the present case, the suit was filed,in the year 1984 and therefore, the benefit of section 39 of the act was not available to the petitioner. further the building had not completed 10 years of its existence when the suit was filed and therefore, the u. p. act no. 13 of 1972 was not applicable.16. in view of the aforesaid, the civil revision is devoid of any merit and is dismissed with costs.