JUDGMENT :

(Ajit Kumar, J.)

1. Heard Sri Prakhar Tandon, learned counsel for the revision applicant in SCC Revision No. 158 of 2022 Saurabh Srivastava, learned counsel for the contesting respondent and Sri Ashish Kumar Singh, learned counsel for the revision applicant in SCC Revision (D) No. 48 of 2022.

2. Both these revision applications raise common question of law and hence being decided together by this common judgment and order.

3. In SCC Revision No. 158 of 2022, the revision applicant is aggrieved by the order passed by the Judge, Small Causes dated 23rd September, 2022 rejecting his application bearing no. 232-C, filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 questioning the maintainability of Small Cause Suit for recovery of arrears of rent and ejectment even after coming into force and for the provisions contained under U.P. Regulation of Urban Premises Tenancy Act, 2021 (hereinafter referred to as new Tenancy Act, 2021), which has come into force vide gazette notification w.e.f. 16th September, 1972.

4. In SCC Revision No. 48 of 2022, the revision applicant has questioned the order dated 13th July, 2022 passed by the District Judge, Saharanpur in SCC Suit No. Nil of 2022 dismissing the SCC Suit at the very threshold holding it to be not maintainable in view of enforcement of Tenancy Act, 2021 and the provisions contained therein.

5. Thus two legal questions arise for consideration before this Court:

(a). Whether a Small Cause Suit already instituted, since prior to coming into force of the new Tenancy Act, 2021 and so also such SCC revision arising therefrom would stand saved or the SCC suit and SCC Revision being not mentioned in the repeal and saving clause of Section 46, the proceedings of such suit and revision would stand abated; and

(b). Whether the bar created under Section 38 of the Tenancy Act is not an absolute one and so Small Cause Suit for arrears of recovery of Rent and Eviction (SCC Suit) and SCC Revision arising therefrom would still be maintainable even after the enforcement of the New Tenancy Act, 2021 qua the of tenancies not covered by tenancy agreements provided for under Tenancy Act, 2021.

6. In respect of question “(a)” following arguments have been advanced by Sri Prakhar Tandon, learned counsel, appearing for the applicant in revision no. 158 of 2022:

(i) Section 46 of the New Tenancy Act, 2021 saves certain proceedings already instituted and pending under the U.P. Urban Building (Regulation of Letting Rent and Eviction) Act, 1972, but does not mention to the suits instituted under the proviso to Sub Section 3 of Section 15 of the Provincial Small Causes Courts Act, 1887 in its application to the state vide U.P. Civil Laws Amendment Act, 1972 and so repeal and saving clause would not apply to the proceedings of SCC suits and SCC revisions;

(ii) Section 46 of the New Tenancy Act, 2021 is meant to replace Act No. 13 of 1972 and has made the operation of this new Act to be prospective only to ensure that already pending proceedings under the repealed U.P. Urban Building (Letting of Rent and Eviction) Act, 1972 are not frustrated;

(iii) New Act provides for a forum to initiate proceedings by land lord against tenant and since new Act replaces the old Act and has been enacted by a competent legislature on a subject falling in the State list of the Schedule VII of the Constitution, it will occupy the field to the exclusion of all other Acts framed by the competent legislature on the subject in the list 2, and therefore, the provisions as enacted by the State legislature vide U.P. Civil Laws Amendment Act, 1972 would also stood impliedly repealed. Thus according to Mr. Tandon, in so far as proviso to sub section 3 of Section 15 of the Provincial Small Causes Courts Act, 1887 and Bangal, Agra and Assam Civil Courts Act, 1887 in its application to Uttar Pradesh, would stand repealed.

7. Sri Saurabh Srivastava, learned counsel for the respondent has raised an argument that since foru