IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Revision No. 397 of 2001 (Old No. 481 of 2000) Sri Sampoorn Sah, S/o Sri Shrish Chand Sah, Adopted son of Smt. Saraswati Sah, R/o Indira Sadan, Sukhatal, Mallital Nainital. ……………Plaintiff-Applicant. Versus Sri Jadish Chandra Pandey, S/o Sri Bhaola Datt Pandey R/o Suite No.2, Indira Sadan, Sukhatal, Mallital, Nainital. ………………Defendant/Respondent. Sri Sharad Sharma and Sri K.N. Joshi, learned counsel for the Plaintiff/Revisionist. Sri Sandeep Kothari, learned counsel for Defendant/Respondent. Hon’ble Prafulla C. Pant, J. This revision, preferred under Section 25 of the Provincial Small Causes Court Act, 1887, is directed against the judgment and decree dated 18.09.2000, passed in S.C.C. Suit No. 9 of 1995, whereby the suit filed by the landlord (plaintiff) is dismissed on the ground that it is not maintainable. (2) Heard learned counsel for the parties. (3) Brief facts of the case are that Smt. Saraswati Sah (original plaintiff)instituted suit for recovery of arrears of rent and eviction of the defendant on the plea that the defendant Jagdish Chandra Pandey is a tenant over a part of building known as ‘Indira Sadan’ in Mallital, Nainital. It is pleaded by the plaintiff in the suit that the rate of rent was Rs. 1000/- per month. It is further alleged that the defendant failed to pay the rent w.e.f. 01.01.1994 even after being served with notice under Section 106 of Transfer of Property Act, 1882. Hence the suit under Section 20 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred as U.P. Act No. 13 of 1972) is instituted. The defendant / respondent contested the suit by filing the written statement wherein he admitted having inducted as a tenant by husband of the plaintiff (who later died before the institution of the suit) However, rate of rent is disputed and it is alleged by the defendant that it was Rs. 500/- per month only. The learned Judge, Small Cause Court / II Additional District Judge, Nainital, after hearing the parties dismissed the suit on the ground that in view of the principle of law laid down in Nutan Kumar Vs. Second Additional District Judge, 1994 Allahabad Law Journal pg. 999, wherein it was held that where a tenant is inducted against the provisions of U.P. Act No. 13 of 1972, agreement between the landlord and tenant in a building to which the Act is applicable, is void. (4) In the present case it is established on the record that the building is an old one to which provisions of U.P. Act No. 13 of 1972 are applicable. It is also not disputed between the parties that there is no allotment order in favour of the defendant and he was inducted as a tenant by the husband of the plaintiff / landlord without following the provisions of U.P. Act No. 13 of 1972. (5) Learned counsel for the plaintiff / revisionist drew attention of this Court to the judgment of the apex court in Nutan Kumar and others Vs. IInd Additional District Judge and others (2002) 8 Supreme Court Cases 31, wherein the apex court has set aside the judgment of the full bench of the Allahabad High Court relied by the learned trial court while dismissing the suit as not maintainable. In view of the judgment of the apex court, the dismissal of suit by the trial court, is erroneous in law and as such liable to be set aside. Having gone through the judgment in Nutan Kumar and others Vs. IInd Additional District Judge and others (2002) 8 Supreme Court Cases 31 and the judgment of the Allahabad High Court in Mohd. Tayyab Vs. Additional District Judge, (E.C.) Act, Dehradun and another, 1999 (2) ARC pg. 748 and Brij Nandan Sahai Hajela Vs. Third Additional District Judge, Shahjahanpur and others, 1996(1) ARC, pg. 165, this Court finds that since the tenancy is admitted by the defendant himself in the written statement, the suit cannot be thrown out treating the tenancy to be void. It is pertinent to mention here that during pendency of suit the original plaintiff Smt. Saraswati Sah has died and in her place Sri Sampoorn Sah has been substituted as plaintiff. It is also pertinent to mention here that both the parties have already led evidence in the suit but the trial court has not given any finding as on the disputed rate of rent and default. (6) In the circumstances, this revision is allowed. The impugned judgment and decree dated 18.09.2000, passed in S.C.C. Suit No. 9 of 1995, by IInd Additional District Judge / Judge, Small Causes Court, Nainital, is set aside and the case is remanded back to the trial court directing it to hear the parties afresh on merits of the suit and decide the same within a period of three months from the date of certified copy of this order is received by the trial court or the court to whom the suit is transferred. (Prafulla C. Pant, J.) 15.04.2008 NS