The exemption granted under the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 to buildings which were not 10 years old at the time of the institution of the suit will continue to be available even after that period had expired.

S.C.Mathur

1. This is landlord's writ petition directed against the judgment and order dated 2-2-1987 Annexure-5 passed by the Vllth Additional District Judge, Lucknow in revision under Section 25 of the Provincial Small Cause Courts Act.

2. The original petitioner B. P. Srivastava filed suit against Gyan Thakwani opposite party no 2 for eviction from accommodation in question and recovery of arrears of rent and damages for use and occupation. The suit it appears was filed on 29-1-1984. The case of the plaintiff was that the property was not governed by the provisions of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and that the tenant-opposite party had sublet the premises. The trial court upheld both the pleas of the landlord and decreed the suit. The tenant preferred revision which came to be heard by the Vllth Additional District Judge, Lucknow. The learned Additional District Judge held that the first assessment of the property in question was made by the Corporation on 1-4-1976 and, therefore, the building completed 10 years of construction in the year 1986. The revisional Court was of the view that on completion of the period of 10 years, the property came to be governed by the provisions of the aforesaid Act. It further was of the opinion that once the property comes to be governed by the provisions of the Act, decree for ejectment cannot be passed if the tenant avails of the benefit of sections 39 and 40 of the Act. Giving the tenant benefit of these sections, the decree for eviction was set aside.

It is not disputed that during the pendency of the revision before the Additional District Judge, the property became 10 years old. The question for consideration is whether the exemption granted under the Act to buildings which were not 10 years old at the time of the institution of the suit will continue to be available even after that period had expired. This question was settled by their Lordships of the Supreme Court in Om Prakash Gupta v. Vijendrapal Gupta, 1982 (2) SCC 61=1982 AWC 226 In Vineet Kumar v. Mangal Sain Wadhera, AIR 1985 SC 817 = 1984 AWC 128, a two Judge Bench of the Supreme Court took a contrary view and held that the moment a building becomes 10 years old, the Rent Control Act would become applicable and it will not be possible to pass a decree for eviction on the basis that the Act is not applicable. The earlier decision of their Lordships in Om Prakash Gupta's case had been rendered by a Bench of 3 Judges. The matter again came up before a 2 Judge Bench in Nand Kishore Marwah v. Samundari Devi, 1987 (4) SCC 382 = 1987 AWC 1261. The Bench noticed that the earlier decision had been rendered by a three Judge Bench and, therefore, the same deserved to be followed in preference to the judgment rendered in Vineet Kumar's case. It has been observed by their Lordships that the attention of the Bench dealing with Vineet Kumar's case was not drawn to the decision in Om Prakash Gupta's case This, however, is not the fact. Reference to that case has been made in paragraph 14 of the report and distinction has been drawn That, however, is immaterial as I am bound by the latest pronouncement of their Lordships which contains also interpretation of the judgment in Om Prakash Gupta's case. Om Prakash Gupta's case, as interpreted by their Lordships in Nand Kishore Marwah's case, lays down that the exemption available under section 2 (2) of the Act at the time of the institution of the suit will not be lost when the property becomes ten years old during the pendency of the litigation After considering the impact of the judgment in Om Prakash Gupta's case their Lordships have observed in Nand Kishore Marwah's case as follows :-

"...............This clearly indicates that the restriction put under section 20 is to the institution of the suit itself and therefore it is clear that if the provisions of this Act applies then no suit for eviction can be instituted except on the grounds spec