Hari Shanker Seth v. Bhagwati Prasad — 1975 DIGILAW 315 (ALL)

JUDGMENT T.S. Misra, J. - This appeal by the defendant arises out of a suit for his ejectment from the premises detailed and described at the foot of the plaint and for recovery of Rs. 850.00 as arrears of rent. 2. The plaintiff-respondent is the owner of the house in question which was constructed after the year 1951. According to the plaintiff the defendant was a tenant of a portion' of the said house on a monthly rental of Rs. 25.00. The defendant's tenancy was terminated by a notice under section 106 of the Transfer of Property Act, and as he failed to deliver possession of the premises in question a suit for the aforesaid reliefs was filed against him. That suit was resisted by the defendant on a variety of grounds. He alleged inter alia that he was a tenant at a monthly rental of Rs. 16.00 and not Rs. 25.00 ; that the house in question was constructed in the year 1930 and was, therefore, governed by the provisions of U.P. (Temporary) Control of Rent and Eviction Act ; that nothing was due from his towards rent, that he had made no alterations in the house as alleged by the plaintiff and that no valid notice under section 106, Transfer of Property Act was given to him. 3. The trial court found that notice given by the plaintiff was bad in law and did not have the effect of terminating the tenancy of the defendant, that the rent of the premises in suit was Rs. 16.00 per mensem and not Rs. 25.00 that the house in question was built after 1951, hence it was not governed by the provisions of U.P. (Temporary) Control of Rent and Eviction Act, and that nothing was due from the defendant as arrears of rent. On these findings the suit was dismissed by the trial court. 4. Against that decision the plaintiff preferred an appeal. The appellate court below on reappraisal of the evidence on record concurred with the trial court that the premises in suit were constructed by the plaintiff after that year 1951, hence the provisions of U.P. (Temporary) Control of Rent and Eviction Act did not apply to the same. 4. Against that decision the plaintiff preferred an appeal. The appellate court below on reappraisal of the evidence on record concurred with the trial court that the premises in suit were constructed by the plaintiff after that year 1951, hence the provisions of U.P. (Temporary) Control of Rent and Eviction Act did not apply to the same. It, however, reversing the finding recorded by the trial court, held that the notice dated 130-1964 given by the plaintiff to the defendant was perfectly valid and it did terminate the tenancy of the defendant. The appellate court below, however, agreed with the trial court that the rate of rent of the premises in suit was Rs. 16.00 per mensem and not Rs. 25.00 as alleged by the plaintiff, and that no arrears of rent for the period claimed in the suit were due from the defendant. On these findings the appellate court below modified the decree of the trial court and decreed the plaintiff's suit for ejectment of the defendant from the premises in question but dismissed the suit for arrears of rent claimed by the plaintiff. Aggrieved by that decision the defendant has come to this court on second appeal. 5. For the defendant-appellant it was urged that both the courts below have found that the premises in question were constructed after the year 1961 and that the same were let out to the defendant in 1958. During the pendency of the appeal U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act of 1972) was enforced, with effect from 14-7-72 and the premises in suit came to be governed by the provisions of this Act which repealed Act III of 1947. It was, therefore, urged that no decree for ejectment of the defendant-appellant from the said premises can be passed unless any of the grounds enumerated in section 20 of the Act of 1972 was made out. In other words, it was urged that the suit for ejectment of the defendant from the said premises was liable to be dismissed on the ground that it as barred by section 20 of the Act of 1972. 6. It was not disputed on behalf of the respondent that the provisions of Act of 1972 now applied to the said premises. 6. It was not disputed on behalf of the respondent that the provisions of Act of 1972 now applied to the said premises. It was, however, urged on behalf of the respondent that as the defendant failed to comply with the provisions of section 39 of the Act of 1972, the decree for ejectment passed against the defendant was not liable to be set aside and section 20 of the Act of 1972 did not bar the suit. 7. The question raised in this appeal came to be examined by a Division Bench of this Court in Civil Revision No. 1458 of 1974 (Man Singh v. Ch. Bishamber Singh and another) at Allahabad decided on 2-2-1975. In that civil revision a learned single, Judge of this Court referred the following question for decision by a larger Bench "If a building is constructed in 1964 and suit is filed in 1972 for ejectment of the tenant and the suit is decreed in 1973 by the Court of Small Causes and the revision instituted in 1973 under section 25 of the Provincial Small Cause Courts Act remain pending till 1974 and ten years period since the completion of the construction lapsed, can the suit be dismissed on the ground that it was barred by section 20 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972." Examining the scope of section 20 and section 39 of the Act of 1972 the Division Bench in Man Singh's case (supra) observed : "To suits pending on the date of the coming into force of the Act in respect of buildings to which the old Act did not apply but to which the Act becomes applicable by reason of section 2(2) of the Act, the provisions of section 39 of the Act are attracted. Section 39 of the Act enables parties to such suits to amend their pleadings and :to adduce additional evidence where necessary. It provides that in case a tenant makes the deposit mentioned therein within the time prescribed thereby, the suit for his eviction shall not be decreed except on any of the grounds mentioned in the proviso to sub-section (1) or in clauses (b) to (g) of sub-section (2) of section 20. It provides that in case a tenant makes the deposit mentioned therein within the time prescribed thereby, the suit for his eviction shall not be decreed except on any of the grounds mentioned in the proviso to sub-section (1) or in clauses (b) to (g) of sub-section (2) of section 20. Thus if a suit for eviction of a tenant from premises to which the old Act did not apply is pending, to which the Act becomes applicable on the coming info force thereof and eviction of the defendant tenant is being sought on grounds mentioned in the proviso to sub-section(1) or clause (b) to (g) of sub-section (2) of section 20, the claim for his eviction may be decreed in spite of the fact that the tenant may have made the deposits contemplated by section 39, within the time prescribed therein. Failure to make the requisite deposits by the defendant-tenant in such cases will only entail his defence being struck off or refusal by the court to entertain the defence. But if a suit is based on the ground that the tenant is in arrears of rent for the requisite period and has failed to pay the same in spite of a notice of demand aid the requisite deposits have been made within the time prescribed by section 39, the suit for eviction of the tenant will be liable to be dismissed since on account of that provision, relief for his ejectment cannot be granted. In respect of buildings to which the old Act did not appellant landlord was entitled to institute a suit for eviction of his tenant merely by terminating his Tenancy by means of notice under section 106 of the Transfer of Property Act. There need not have been any particular grounds for the claims for the eviction of the tenant. In such suits, however, damages for use and occupation would necessarily have accrued subsequent to the termination of the tenancy of the tenant. There need not have been any particular grounds for the claims for the eviction of the tenant. In such suits, however, damages for use and occupation would necessarily have accrued subsequent to the termination of the tenancy of the tenant. In such cases also the tenant would be at liberty by reason of section 39 of the Act t:o save his tenancy by making such deposits as may be due from him on account of damages for use and occupation and costs etc., in accordance with that provision, even though there may not exist any claim for arrears of rent." The Division Bench answered the question referred by the learned single Judge as follows : "If a building is constructed in 1964 and suit is filed in 1972 for ejectment of the tenant and the suit is decreed in 1973 by the Court of Small. Causes and the revision instituted in 1973 under section 25 of the Provincial Small Causes Courts Act remains pending till 1974 and ten years period since the completion of the construction lapsed, the suit is not liable to be dismissed on the ground that it was barred by section 20 of the Act but it should be dealt within accordance with section 39 of the Act, read with section 20 thereof". In view of above mentioned Bench decision of this Court in Man Singh's case (supra) the contention raised on behalf of the appellant does not survive. It was admitted on behalf of the defendant that he had not made any deposits in terms of section 39 of the Act of 1972. That being so, the suit was not barred by the provisions of section 20 of the Act and the decree for ejectment passed against the defendant cannot be interfered with and set aside. 8. No other point was urged or pressed. 9. In the result the appeal fails and is dismissed with costs.