Shri Chand Gupta v. Madan Lal — 1973 DIGILAW 246 (ALL)

ORDER N.D. Ojha, J. - This is a Plaintiff's appeal arising out of a suit for ejectment, recovery of arrears, of rent and Bhoomi Bhawan Kar. The accommodation in respect of which the suit had been filed is a shop constructed in 1962. The U.P. (Temp.) Control, of Rent and Eviction Act 1947 was not applicable to the accommodation. In the second appeal an application had been made by the Respondent tenant on 4-8-1972 for permission to make the deposits contemplated by Sections 39 and 40 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 192 (hereinafter referred to as the Act). The necessary permission was granted on 8-8-1972 and the deposits were made in this Court on 10-8-1972. The Act aforesaid came into force on 15-7-1972. The deposits as made on 10-8-1972 are thus within one month from the said date. Nothing has been brought to, my notice on behalf of the Appellant so as to bring the case within the proviso to Sub-section (1) or Clauses (b) to (g) of Sub-section (2) of Section 20 of the aforesaid Act. 2. What, however, has been urged on behalf of the Plaintiff Appellant is that Section 39 aforesaid requires the tenant, inter alia, to deposit the full costs of the suit which would include full costs of the second appeal in view of Section 40 of the Act. It was urged that even though the Respondent may be justified in not depositing costs of the courts below inasmuch as the lower appellate court had directed the parties to bear their own costs, it was nevertheless incumbent upon the Respondent to have deposited the full costs of the appeal. 3. On a perusal of the tender it appears that Rs. 55/- have been deposited as costs. This obviously represents the costs of the second appeal. The words 'full costs' of the suit u/s 39 have to be given a reasonable interpretation. Suppose the new Act came into force when a suit was pending in the trial court and was at the stage of framing of issues. At that stage it is not possible for the Defendant tenant to know the amount of costs Which the Plaintiff may incur in producing witnesses oh the date of the final hearing. He may not be aware even about the number of witnesses that the Plaintiff may produce. At that stage it is not possible for the Defendant tenant to know the amount of costs Which the Plaintiff may incur in producing witnesses oh the date of the final hearing. He may not be aware even about the number of witnesses that the Plaintiff may produce. In such a situation the Defendant cannot be required to do the impossible act of depositing even such costs which the Plaintiff may in our subsequently. The deposit has to be made within a month from the date of the commencement of the Act which would be by 15-8-1972. In my opinion, therefore, full costs of the suit u/s 39, if given a reasonable interpretation mean full costs of the suit as may have been incurred by the Plaintiff on or before the date on which the deposit is made u/s 39. On this interpretation the Respondent if he wanted to take the benefit of Section 40 read with Section 39 was bound to deposit in this Court the entire amount of costs which the Plaintiff had incurred by 10-8-1972, viz. the date on which the deposit was made. The valuation of the appeal has been shown as Rs. 600/-. The taxable fee for counsel comes to Rs. 45/- and the clerical charges would be Rs. 4.50. A sum of Rs. 5/- would represent the court fees paid by the Appellant on Vakalatnama. These amounts seem to have been deposited by the Respondent representing the costs incurred by the Appellant. However, it will be noticed that the Appellant had also incurred by that time another set of costs, viz. a sum of Rs. 92/- court fees paid on the memorandum of appeal and other sums of money paid by way of stamps on the judgments and decrees as also the process fee. All these amounts had been incurred by the Appellant before 10-8-1972 and represented the costs incurred by him. Even on the aforesaid liberal interpretation of Section 39 the Respondent, if he wanted to take the benefit of Section 40 read with Section 39, was thus bound to deposit all these amounts towards the costs of the second appeal. This not having been done the Respondent has failed to comply with the mandatory requirements of Sections 39 and 40 and a decree for eviction of the Respondent cannot be refused because of the bar created by these sections. 4. This not having been done the Respondent has failed to comply with the mandatory requirements of Sections 39 and 40 and a decree for eviction of the Respondent cannot be refused because of the bar created by these sections. 4. Faced with this difficulty the learned Counsel for the Respondent made two applications during the course of the hearing of this appeal one u/s 151 of the CPC for permission to deposit Rs. 98/- which according to him represented the balance of the "full cost" and the other u/s 5 of the Limitation Act with a prayer to condone the delay in making the said deposit of Rs. 93/-. In place of passing separate orders on these applications propose to decide them by this very judgment. 5. It was urged that Section 35 of the Act makes Section 5 of the Limitation Act applicable to the proceedings under the Act and since the mistake in not depositing the "full cost" was due to a bona-fide error of calculation it deserved to be condoned. The fact that Section 5 of the Limitation Act has been made applicable to the proceedings under the aforesaid Act, however, does not solve the difficulty. Section 5 of the Limitation Act applies only to those cases where a delay has occurred in filing an appeal or application. Sections 39 or 40 of the Act do not contemplate the filing of any application. These sections require a deposit being made within one month of the commencement of the Act. Making of a deposit is not tantamount to filing of an application. Section 5 cannot, therefore, be pressed into service to get the delay in making the requisite deposit Under Sections 39 and 40 of the Act condoned. The question as to whether Section 5 of the Limitation Act could be applied in those cases where deposit was to be made within a particular time came for consideration before a Full Bench of this Court, in J.C. and M. Mart v. Asstt. Commr. 1968 ALI 547 (FB). It was held that u/s 5 of the Limitation Act delay can be condoned if a party makes delay in filing an appeal or making an application. Where the delay was made in depositing an admitted tax but the appeal itself was filed within time there was no room to give the benefit of Section 5. 6. It was held that u/s 5 of the Limitation Act delay can be condoned if a party makes delay in filing an appeal or making an application. Where the delay was made in depositing an admitted tax but the appeal itself was filed within time there was no room to give the benefit of Section 5. 6. It was than urged that even if Section 5 of the Limitation Act was not applicable it was a fit case for this Court to exercise its power u/s 151 of the CPC for extending the time to make the necessary deposit. In Jagjit Singh v. Sankatha Singh AIR 1950 All 675 FB a question arose as to whether time granted for making deposit u/s 16 of the U.P. Agriculturist Relief Act can be extended or not. The question was answered in the negative by a Full Bench and it was held that time could not be extended either u/s 148 or u/s 151 of the Code of Civil Procedure. In Manilal Mohanlal v. Syed Ahmad AIR 1954 SC 319 it was held that Section 151 cannot be invoked to circumvent the mandatory provisions of the Code of Civil Procedure. This principle will apply also to a case where there is a mandatory provision even though not in the Code but in a different statute. In Ram Shanker and Others Vs. Lalta Prasad and Another, AIR 1964 All 124 dealing with the provisions of Article 168 of the Limitation Act it was held that it is not open to the court to extend the period of limitation u/s 151 of the CPC for the filing of an application for setting aside an order of dismissal of the appeal for default. The same view was taken in a subsequent case reported in Ram Yagya and Another Vs. Jagannath Prasad and Others, AIR 1965 All 64 . In this case it was further observed that ends of justice ordinarily can never require that such a statute be by passed by invoking the inherent jurisdiction of the court. In view of the decisions referred to above I am of the opinion that the time for making the deposit as contemplated by Sections 39 and 40 of the Act cannot be extended u/s 151 of the CPC also. 7. In view of the foregoing discussion the appeal has to be decided on merits. In view of the decisions referred to above I am of the opinion that the time for making the deposit as contemplated by Sections 39 and 40 of the Act cannot be extended u/s 151 of the CPC also. 7. In view of the foregoing discussion the appeal has to be decided on merits. Learned Counsel for the Appellant urged that on the findings recorded even by the lower appellate court the Appellant was entitled to a decree for ejectment and the ground on which such a decree has been refused by the lower appellate court is not sustainable in law. 8. It would be seen that the lower appellate court has refused the relief of ejectment and has reversed the decree of the trial court in this behalf on the ground that even though the notice u/s 106 of the Transfer of Property Act had been served on the Respondent the Appellant had failed to prove that the copy of the notice which was filed was a true copy of the original notice which was sent to the Respondent. Having heard learned Counsel for the parties I jam of the opinion that the finding of the lower appellate court on this point is erroneous in law. Firstly, the copy of the notice has been exhibited as Ext. 5 and the objection on which the lower appellate court, has reversed the decree of the trial court related to the mode of proof of the copy of the notice. In AIR 1943 83 (Privy Council) it had been held that if the objection to be taken was that the mode of proof of a document as put forward was irregular or insufficient the objection should be taken at the trial before the document was marked as an exhibit and admitted to the record such an objection cannot be permitted to be raised for the first time in appellate court. In P.C. Purushothama Reddiar Vs. S. Perumal, AIR 1972 SC 608 it has been held that it is not open to a party to object to the admissibility of documents which are marked as exhibits without any objection of such party and that once a document is properly admitted the contents of that document are also admitted in evidence though these documents may not be conclusive evidence. In view of these decisions ft was really not open to the Respondent to raise the objection in regard to the mode of proof of Ext. 5 before the lower appellate court. 9. Secondly, in my opinion even on merits exhibit 5 has been proved to be a true copy of the original. The Appellant has specifically stated in his deposition that paper No. 20C (the document in question) is a copy of the notice whish he had got sent to the Respondent through his counsel and that the original and this document both were signed h p his counsel in his presence and that the document in question bore the signature of his counsel. He also stated the it the notice was got typed by his counsel in his presence and the copy had been compared with the original. In my opinion the statement of the Appellant clearly proved Ext. 5. The power appellate court, therefore, committed an error of law in setting aside the decree of the trial court. 10. In the result the appeal is allowed, the judgment and decree of the lower appellate court are set aside and that of the trial court restored with costs throughout. Learned Counsel for the Respondent has made a prayer that time till 31-10-1973 may be granted to the Respondent to vacate the accommodation in question. It has been stated that mesne profits upto 31-4-1973 have already been deposited by the Respondent and that the Respondent will deposit the mesne profits payable upto 31-10-1973 also by 15-7-1973. Learned Counsel for the Appellant has no objection. The execution of the decree for ejectment, therefore, shall not be carried out before 1st November 1973 provided the Respondent deposits a sum of Rs. 300/- representing the mesne profits for the period 1-5-1973 to 31-10-1973 by 15-7-1973.