V.P. Anand vs Xv Additional D.J. and Others

Hon''ble Ritu Raj Awasthi, J.—Heard Mr. C.B. Pandey, learned counsel for the petitioner as well as Mr. S.K. Vidyarthi for the respondents and perused the record.

The writ petition has been filed challenging the judgment and order dated 11.05.1989 passed by the Court of Judge Small Causes, Lucknow as well as the judgment and order dated 22.02.1994 passed by the Revisional Court.

Learned counsel for the petitioner submits that a suit for ejectment and arrears of rent was filed under the provisions of Small Causes Court Act. Learned trial Court while deciding the case came to the conclusion that since the property in question is an old property, as such, the provisions of Act No. XIII of 1972 would be applicable.

Feeling aggrieved, the petitioner preferred Revision No. 20 of 1989. The Revisional Court while deciding this case although observed that in 1977-78 new constructions of first floor and second floor were raised but since during the pendency of the revision, the statutory period of ten years as required under the Act No. XIII of 1972 have passed, as such, the provisions of Act No. XIII of 1972 would be applicable. The revision was accordingly rejected.

Learned counsel for the petitioner contended that in fact the period of construction of the building in question is to be counted from the date of institution of the suit and the period of pendency of the case cannot be counted for the purpose of applicability of the Act. In support of his contention, he has relied on the decision passed by this Court in the case of Firm Seth Nanhak Chand & Ors. vs. District Judge, Mirzapur reported in 2004 (55) ALR 598; wherein relying on the judgment passed by Apex Court reported in AIR 1992 S.C. 304 It was held that the applicability of the Act No. XIII of 1972 would be applicable on the basis of date of institution of the case. The relevant paragraph of the judgment is quoted as under:-

However, later on Supreme Court overruled the said view and held that if on the date of filing of the suit, the Act was not applicable then it would not become applicable during pendency of the suit even though requisite period of assessment (10 years at the relevant time) expired during pendency of the suit. In this regard reference may be made to AIR 1992 S.C. 304

Learned counsel appearing for the opposite party No. 3 although does not dispute the aforesaid legal proposition, however, submits that the learned Trial Court had, in fact, came to the conclusion that there is nothing on record on the basis of which it can be presumed that some construction was made in the building in question on a subsequent date and in fact as per the assessment order of the year 1970 the building appears to be old one. His contention is that, in fact, the Revisional Court was wrong in holding that some construction was raised in the year 1977-78.

Be that as it may, this Court is of the view that so far as the legal proposition with regard to the applicability of Act No. XIII of 1972 is concerned, the law is very clear. The Act No. XIII of 1972 would be applicable on the basis of date of filing of the suit.

In this view of the matter, the judgment passed by the Revisional Court is not sustainable. The matter requires to be re-considered by the Revisional Court. So far as the plea with regard to construction of the building including the new constructions, if any, are concerned, the parties would be at liberty to raise their pleas before the Revisional Court.

For the reasons given above, the order impugned i.e. judgment and order dated 22.02.1994 passed in Revision No. 20 of 1989 is hereby set aside. The matter is remanded back to the Revisional Court to decide the revision, afresh after affording opportunity of hearing to the parties concerned. Looking to the fact that the case is an old case, it is hereby provided that the revision shall be decided, expeditiously, say within a period of six months from the date a certified copy of this order is produced before it. The parties shall co-operate in disposal of the revision.

The writ petition is allowed.