Judgment

NATARAJAN, J. :- Leave granted.

This appeal by special leave has been preferred by a landlord and is directed against the judgment and order of the Allahabad High Court in Civil Miscellaneous Writ Petition No. 7343 of 1982. The appellant succeeded in obtaining a decree for eviction against the respondents before the trial Court and the Revisional Court but the decree was quashed by the High Court in the writ petition filed by the respondents herein and hence the present appeal by the landlord appellant.

2. The suit for eviction on the ground of arrears of rent was filed by the appellant on 11-9-1973 after the coming into force of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short the Act.) In the plaint it was averred that the Act would not apply to the lease of the demised premises viz. a shop because the shop had been constructed only in the year 1966, and as such, the shop was exempted from the purview of the Act for a period of ten years as provided for in S. 2(2) of the Act. The respondents raised various defences to the action but we are now concerned only with the tenability of one of those defences viz. that the shop was covered by the Act and as such the respondents were entitled to claim the benefit conferred by S. 39 of the Act on tenants who were in arrears of rent.

3. During the pendency of the suit, in the month of February 1976, the respondents made an application to the trial Court to direct the appellant to disclose the date of construction of the shop as the plaintiff failed to disclose the date and it only contained a general averment that the shop had been constructed in the year 1966. As no information was forthcoming, the respondents filed another application on 12-3-1966 for the self same purpose. After waiting for some time the respondents deposited the arrears of rent together with interest etc. as provided for in S. 39 of the Act in April, 1976 and after they had made the deposit, the appellant furnished information to the effect that though the shop had been constructed in 1965, it was assessed to house tax for the first time on 1-1-1966 and therefore the date of construction for purpose of S. 2(2) would be the 1st of January, 1966. The trial court accepted the statement of the appellant regarding the date of construction of the shop being 1-1-1976 and took the view that since the respondents had failed to deposit the arrears of rent etc. within one month from that date but had despoited the arrears only in the month of April 1976, the respondent were not entitled to claim the benefit under S. 39.

4. The respondents preferred a revision to the District Court under S. 25 of the Provincial Small Cause Courts Act. The 3rd Addl. District Judge, Meerut who heard the revision held that irrespective of the date of deposit of the arrears of rent, the respondents were not entitled to claim benefits under S. 39 because the Act itself did not apply to the demised premises inasmuch as the suit for eviction was not pending on the date of the Act came into force viz. 15-7-72 and had been filed only on 11-7-73. In taking such a view, the Revisional Court followed the ratio laid down by this Court in Om Prakash v. Digvijendrapal, (1982) 3 SCR 491. Accordingly, the Revisional Court dismissed the revision petition.

5. The respondents thereafter preferred a writ petition to the High Court of Allahabad under Art. 226 of the Constitution of India. A learned single Judge of the High Court held that that the observation in Om Prakashs case (supra) to the effect that in order to attract S. 39 the suit must be pending on the date of commencement of the Act viz. 15-7-1972 has been held to be obiter dicta by this Court in a later case Vineet Kumar v. Mangal Sain Wadhera, (1984) 3 SCC 352 and therefore the respondents would not stand disentitled to seek the benefit of S. 39 of the Act merely on the ground the suit for eviction was not pending on the date the Act came into force. Proceedi