Suraj Bhan Verma v. Hari Om — 1975 DIGILAW 305 (ALL)

JUDGMENT K.N. Seth, J. - The plaintiff respondent filed a suit for ejectment of the appellant and for recovery of arrears of rent, means profits etc. The trial court, on the finding that the shop in dispute was a post 1951 construction and consequently U. P. Act No. III of 1947 was not applicable and that the tenancy had been terminated by a valid notice, decreed the suit for ejectment and for recovery of Rs. 674/- and future and pend-entilite means profits at the rate of Rs. 30/- per month. The appeal preferred by the defendant was dismissed by the lower appellate court with costs and the decree of the trial court was affirmed. 2. Before the defendant appellant filed the present appeal on 27-7-1972 the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) came into force with effect from 15-7-1972. The only question involved in the appeal is whether the appellant is entitled to the protection provided by Sections 39/40 of the Act. 3. It is not in dispute that during the pendency of the suit, on the direction of the trial court, the appellant deposited a sum of Rs. 290/- on 18-12-1969 towards rent damages for use and occupation. On the suit being decreed he made a further deposit of Rs. 674/-, the entire decretal amount, in the trial court on 4-12-1971. During the pendency of the appeal in the court below he deposited Rs. 1052/- in pursuance of the condition imposed by the appellate court for staying the execution of the decree for ejectment. In this way a sum of Rs. 2116/- was deposited by the appellant in pursuance of the orders of the Court. A further sum of Rs. 30/-was deposited on 18-7-1972. As against a sum of Rs. 2056/- due against him towards the entire decretal amount inclusive of costs and rent damages for use and occupation upto July, 1972, the appellant deposited a total sum of Rs. 2146/-. A further sum of Rs. 200/-, was deposited on 9-8-1972 i.e. within one month from the date of the enforcement of the Act. The appellant claimed that no decree for his eviction could be passed as he has complied with the conditions imposed by Section 39 of the Act. 2146/-. A further sum of Rs. 200/-, was deposited on 9-8-1972 i.e. within one month from the date of the enforcement of the Act. The appellant claimed that no decree for his eviction could be passed as he has complied with the conditions imposed by Section 39 of the Act. The learned counsel for the plaintiff respondent contended that the appellant was not entitled to the benefit afforded by the Act as no suit or proceedings were pending on the date of commencement of the Act and necessary deposits were not made in the proper court. 4. Section 39 of the Act provides:- "39. Pending suits for eviction relating to buildings brought under regulation for the first tme. In any suit for eviction of a tenant from any building to which the old Act did not apply, pending on the date of commencement of this Act, where the tenant within one month from such date of commencement or from the date of his knowledge of the pendency of the suit, whichever be later, deposits in the court before which the suit is pending, the entire amount of rent and damages for use and occupation (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlords full costs of the suit, no decree for eviction shall be passed except on any of the grounds mentioned in the proviso to sub-sec. (1) or in clause (b) to (g) of sub-sec. (2) of Section 20 shall be entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary. Provided that a tenant whom the rent payable by him does not exceed twenty-five rupees per month need not deposit any interest as aforesaid." Section 40 lays down that the provisions of Section 39 shall mutatis matandis apply where an appeal or revision arising out of a suit for eviction of a tenant from any building to which the old Act did not apply, is pending on the date of the commencement of the Act. Admittedly the old Act did not apply to the building in question and the grounds mentioned, in the proviso to sub-sec. (1) or in clauses (b) to (g) of sub-sec. (2) of Section 20 were not attracted. Admittedly the old Act did not apply to the building in question and the grounds mentioned, in the proviso to sub-sec. (1) or in clauses (b) to (g) of sub-sec. (2) of Section 20 were not attracted. It has also not been challenged that the deposits made by the appellant in the trial court in pursuance of the orders of the court, below would cover all the amounts required to be deposited by Section 29 of the Act. The contention raised by the respondent was that as no suit or appeal was pending on the date of the enforcement of the Act, the appellant was not entitled to claim benefit of Sections 39/40 of the Act. It was further urged that even against that the appeal would be deemed to be pending in this Court on the date of the enforcement of the Act, the necessary deposit had to be made in this Court and as that was not does, the appeal was liable to be dismissed. 5. The first appeal filed by the appellant was dismissed by the learned Second Additional Civil Judge, Agra, by his order dated 12-5-1972. Before the limitation for filing the appeal expired, the Act was enforced on 15th July, 1972. Thereafter the appeal was filed in this Court. It is true that no appeal in fact was pending whin the Act came into force but the right of the appellant to approach this court still subsisted and when the appeal was actually filed the proceedings initiated by the suit, which had become dormant alter the decision of the lower appellate Court, revived and the suit became pending. This conclusion is based on the principle that if under a statute a party has a right to approach the superior court, the proceeding can be said to be pending till the right to exercise the right of approaching the superior court subsists and so long that right subsists it cannot be said that the proceedings have come to an end. Till that right is exercised the right only remains dormant and when that right is exercised the original proceedings become pending. 6. A similar question came up for consideration before a Bench of this Court in Dilawar Singh v. The Gram Samaj, AIR 1973 All 411 . Till that right is exercised the right only remains dormant and when that right is exercised the original proceedings become pending. 6. A similar question came up for consideration before a Bench of this Court in Dilawar Singh v. The Gram Samaj, AIR 1973 All 411 . Before the aggrieved party could challenge the order of Settlement Officer (Consolidation) by a revision under Section 48 of the U. P. Consolidation of Holdings Act, a notification under Section 52 was issued. The revision was dismissed on the ground that after the notification under Section 52, the revision could not be entertained. A Bench of this Court took the view that under Section 48 of the U. P. Consolidation of Holdings Act the applicant had a right to approach the Deputy Director (Consolidation) . Before his right to approach the superior court came to an end, notification under Section 52 was issued. That notification did not have the effect of destroying the right which the petitioner had. The proceedings initiated by the appellant under Section 12 of the Consolidation of Holdings Act had not come to an end. It was still pending when the notification under Section 52 was issued although in a dormant shape. The right to approach the superior court could be exercised only after an adverse judgment or order was pas ed and the moment that right was exercised the original proceeding became pending. Applying the same principle it must be held that the appellant is entitled to the benefit conferred by Sections 39/40 of the Act. 7. The next contention of the respondent that as the deposit was not made in this Court the conditions laid down under Section 39 have not been complied with also has no merits. As pointed out earlier, the entire amount due which had to be deposited before the appellant could claim the protection provided by Section 39 had already been deposited in the court below even before the Act came into force and no amount was due against him. In fact he had deposited some thing extra which was more than sufficient to take care of even the costs of the second appeal. The deposit was made as directed by the courts below. As laid down in R.D. Ram Nath and Co. In fact he had deposited some thing extra which was more than sufficient to take care of even the costs of the second appeal. The deposit was made as directed by the courts below. As laid down in R.D. Ram Nath and Co. v. Girdhari Lal, 1975 ALJ 1 only such amount referred to in Section 39 would have to be deposited within one month of the commencement of the Act either in the trial court or in the appellate or revisional court which has neither been paid to the landlord nor deposited in pursuance of the order of the court and remains payable by the tenant on the date of the commencement of the Act. In the present case as nothing was due against the tenant on the date of the commencement of the Act, he was not required to make any deposit in this Court in order to claim benefit of Section 39 of the Act. 8. In the result the appeal is allowed. The decree of the courts below for eviction of the appellant is set aside. The parties shall bear their own costs.