Defendant Nos. 1 and 2 of JSCC Suit No. 2 of 1982 have filed this Revision under Section 25 of the Provincial Small Cause Courts Act, 1887 for setting aside the order dated 11th September, 2007 passed by the learned Additional District Judge Court No. 3 Jaunpur by which the Suit was decreed and the defendant was directed to handover vacant possession of the property to the plaintiff.

2. The aforesaid Suit had been filed by Dharam Raj Sahu for ejectment and arrears of rent/damages after serving the notice under Section 106 of the Transfer of Property Act, 1882 (hereinafter referred to as the act ). It was stated in the plaint that the provisions of U. P. Urban Buildings (Regulations of Letting Rent & Eviction) Act, 1972 (hereinafter referred to as the rent Control Act) were not applicable to the house in dispute and a valid notice under Section 106 of the Act had been served upon the defendants. It was also alleged that defendant No. 1 firm through Pyarelal was the tenant and defendant Nos. 2 to 6 were the partners and had, therefore, been impleaded. The said defendants had illegally and without the consent of the landlord had let out the shop to defendant Nos. 7 and 8 who are now carrying on their business.

3. Two issues were framed by the Court below. The first issue was whether the defendant was entitled to the benefit of Section 114 of the Act as the entire rent had been deposited on or before the first date of hearing while the second issue was whether the plaintiff had terminated the tenancy by the notice issued under Section 106 of the Act. The Court below decided the first issue holding that the arrears of rent had been deposited on or before the first date of hearing of the suit. In respect of the second issue, the Court below held that the tenancy had been validly terminated by the notice sent under Section 106 of the Act.

4. Learned counsel for the revisionists has submitted that the provisions of Section 114 of the Act were attracted and as the tenant had deposited the arrears of rent before the first date of hearing of the suit the decree for ejectment could not have been passed; that the notice issued by the landlord purportedly under Section 106 of the Act did not terminate the tenancy and, therefore, the suit could not have been decreed; that the Rent Control Act was applicable but this issue was neither framed nor decided by the Court below and that as defendant No. 3 Hori Lal had died prior to the passing of the decree, a decree against a dead person was a nullity.

5. Sri Umesh Vatsh learned counsel appearing for the plaintiff-respondent No. 1, however, submitted that the provisions of Section 114 of the Act were not applicable since the tenancy had been terminated by giving the notice under Section 106 of the Act and not under Section 111 (9) of the Act and in support of this contention he has placed reliance upon the judgment of this Court in Mohammad Nasir Vs. District Judge, Nainital & Ors. , 1999 (35) ALR 239 : 1999 (1) AWC 550. He further submitted that the tenancy had been validly terminated under Section 106 of the Act and that the Rent Control Act was not applicable since the building was not an old building and neither any issue had been framed in this regard. He also submitted that the defendants had not pointed out to the Court below the fact about death of defendant No. 3 Hori Lal and the judgment would not be a nullity in such a case.

6. I have carefully considered the submissions advanced by the learned counsel for the parties.

7. The first contention of the learned counsel for the revisionists is that the provisions of Section 114 of the Act are applicable and the decree for ejectment could not have been passed since the entire arrears of rent had been deposited prior to the first date of hearing.

8. In order to appreciate this contention, it would be necessary to refer to the provisions of Sections 106, 111 and 114 of the Act.

Section 106 of the Act as amended in U. P. by U.