Judgment

M. K. MUKHERJEE, J.:- This appeal by special leave has been filed by the landlord against the judgment and order of the Allahabad High Court allowing the Civil Writ Petition of the respondent-tenant.

2. After serving a notice in accordance with Section 106 of Transfer of Property Act, the landlord instituted a suit for eviction in the Court of Small Causes, Moradabad on July 23, 198 1. He contended that the tenanted building was constructed in 1974 and as ten years had not elapsed since then the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Act for short) did not apply to it. He further contended that even if it was assumed that the Act applied the tenant was not entitled to its benefits as he had not complied with the requirement of Section 39. In resisting the suit the tenant refuted both the above contentions of the landlord and submitted that as none of the grounds mentioned in sub-section (2) of Section 20 of the Act, on which only a tenant could be evicted, was made out no decree for ejectment could be passed against him.

3. The trial Court dismissed the suit holding that the Act applied to the building and none of the grounds referred to in Section 20(2) was made out. The trial court further held that as the tenant was not in arrears of rent he was not required to deposit rent in terms of Section 39 of the Act to obtain the benefit thereof.

4. Assailing the above judgment the landlord preferred a revision under Section 25 of the Provincial Small Cause Courts Act which was allowed by the learned Additional District Judge, Moradabad. The learned Judge held that on the date of institution of the suit the building was less than 10 years old and therefore the Act, and, for that matter, Section 20(2) thereof was not applicable. The learned Judge also held that the benefit of Section 39 was not available to the tenant as he did not deposit the rent, interest and cost in accordance therewith. Accordingly, the learned Judge decreed the suit for eviction and for rent.

5. Aggrieved by the above judgment and order of the learned Judge, the tenant filed a Civil Writ Petition in the Allahabad High Court. The High Court held that as the suit building completed 10 years of its existence during pendency of the suit, the Act would apply and, therefore, the tenant could be evicted. only on one or more grounds mentioned in sub-section (2) of Section 20 of the Act. Since, admittedly, none of the grounds mentioned therein was satisfied the High Court held that the suit was liable to be dismissed. The High Court observed that if compliance of Section 39 was considered essential, although in such a suit it was not, the tenant should have been afforded an opportunity to pay the arrears or it should have been made a part of the decree but eviction should not have been ordered. On the above findings, the High Court allowed the Writ Petition.

6. In view of the undisputed fact that the building was constructed in the year 1974 the basic question which requires an answer in this appeal is whether the building, which was not ten years old on the date of the suit and was exempted from the operation of the Act, can be governed by it if ten years elapsed during the pendency of the litigation. To answer this question, in the light of the findings recorded by the learned Courts below, it will be appropriate at this stage to refer to the relevant provisions of the Act. Section 2(2) of the Act, to the extent it is germane for our present purpose, reads as under:-

"(2) Except as provided in sub-section (5) of Section 12, sub-section (I-A) of S. 21, sub-section (2) of Section 24, Sections 24-A, 24-B, 24-C 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."

7. Sub-section (1) of Section 20 provides that except as provided in sub-section (2) no suit shall be instituted for the eviction of a tenant from a building, notwi