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1975 DIGILAW 55 (ALL)

Satya Prakash v. Trilok Chand

1975-01-24

M.P.MEHROTRA

body1975
ORDER : M.P. Mehrotra, J. When this appeal was taken up for hearing, it was brought to my notice that the Appellants had sought the benefit of Section 39 read with Section 40 of the U.P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972), by an application dated 9th August, 1972. On the said application, Mr. Justice Hari Swarup passed the following orders: Issue notice. The Appellants are permitted to make the deposit in the trial court of the amount which they may be liable to deposit u/s 39 read with Section 40 of U.P. Act. No. 13 of 1972, as if those Sections were applicable to the present case. This, however, does not decide the matter on merits. The legality of the deposits and the effect thereof will be considered at the time of final hearing of the appeal. Subsequently, by an affidavit sworn on September 9, 1972 by the Appellant Satya Prakash, it was brought to the notice of this Court that he had deposited a sum of Rs. 8,678/- on 12th August, 1972. 2. At the hearing of the appeal, Shri P.C. Gupta, learned Counsel for the Respondent, contended that the Appellants were not entitled to the benefit of Section 39 read with Section 40 of the U.P. Act No. 13 of 1972 on the ground that the instant appeal was not pending on the date of the common-cement of the said U.P. Act No. 13 of 1972 and, therefore, the benefit of Section 39 read with Section 40 of the Act could not be extended to the Appellants. It may be mentioned here that the lower appellate court decided the appeal pending before it on 10th July, 1972 and this second appeal against the judgment of the lower appellate court was filed in this Court on 9th August, 1972. It is well known that the U.P. Act No. 13 of 1972 came into force on 15th July, 1972. Shri Gupta's contention is that as the instant appeal was not pending on 15th July, 1972 (having been filed as stated above on 9th August, 1972), therefore the benefit of the said provisions should not be made available to the Appellants. 3. Before deciding the said objection, it may be stated here that it has not been shown to me that the sum of Rs. 3. Before deciding the said objection, it may be stated here that it has not been shown to me that the sum of Rs. 8,678/-, which the Appellants asserted to have deposited on 12th August, 1972 was not deposited on the said date or that there was any shortfall in the amount to be deposited u/s 39 read with Section 40 of the said Act. It may also be stated that the amount was deposited in the trial court under the orders of this Court dated 9th August, 1972 and in view of the pronouncement dated 16th September, 1974 of the Division Bench in the reference made in R.D. Ramnath Corporation v. Girdhari Lal S.A. No. 889 of 1972 - See also 1975 AWC 138 the said deposit must be treated to be an effective one, inasmuch as the amount due from the tenants got decreased by the sum so deposited and, therefore, it could not be said that as the deposit was not made in this Court but in the trial court, therefore, the deposit was of no avail to the Appellants. It is true that the Division Bench has laid down that in appeals or revisions the deposit u/s 39 is bound to be made in the appellate or the revisional court, as the case may be, but the Division Bench has also made it clear that where an amount is deposited under the orders of the trial court the liability to deposit the money u/s 39 will get correspondingly decreased and the tenant is not required to make the deposit twice over. In this view of the matter, it cannot be said that the tenant-Appellants failed to comply with the provisions of Section 39 read with Section 40 of the U.P. Act No. 13 of 1972., and it must be held that they have complied with the conditions laid down therein to be entitled to seek the benefit of the said provisions. 4. Shri Gupta's basic objection, however, has to be considered, namely, that the instant appeal was not pending on the date when the U.P. Act No. 13 of 1972 came into force i.e. on 15th July, 1972. Learned Counsel placed reliance on Manna Lal v. Mst. Chhotka Bibi 1964 AWR 334 (F.B.). 4. Shri Gupta's basic objection, however, has to be considered, namely, that the instant appeal was not pending on the date when the U.P. Act No. 13 of 1972 came into force i.e. on 15th July, 1972. Learned Counsel placed reliance on Manna Lal v. Mst. Chhotka Bibi 1964 AWR 334 (F.B.). He also placed reliance on Saheb Singh v. State of Uttar Pradesh 1969 ALJ 177 and Sheo Achal Mishra v. Ram Bali Mishra 1971 AWR 665. In the Full Bench case it was laid down as under: (His Lordship then discussed the Full Bench decision reported in 1964 AWR 334 and proceeded on to observe:) **** In my view, this Full Bench is not applicable to the present case. The Full Bench is only an authority for the proposition which was canvassed and decided, namely, when there is a deficiently stamped memorandum of appeal in a special appeal, it could not be deemed to be a pending appeal when the U.P. Act No. XIV of 1962 came into effect. I am here not concerned with the said questions at all. Here the controversy is if the limitation in respect of an appeal is still running, can it be said to be a pending appeal if it is subsequently filed in this Court, and the question is to be answered in the context of Section 39 read with Section 40 of the U.P. Act No. 13 of 1972. 5. In Saheb Singh v. State of Uttar Pradesh (supra), it was laid down that "an appeal can be deemed to be pending before the hearing under Order 41, Rule 11, Code of Civil Procedure". Again, this case throws no light on the controversy which has been raised in the appeal before me. The case of Sheo Achal Mishra v. Ram Bali Mishra (supra) is also to the same effect, namely, that an appeal shall be deemed to be pending even though it has not been heard under Order 41, Rule 11, Code of Civil Procedure. All the three cases cited by the learned Counsel for the Respondent are not applicable to the facts involved in the present case. 6. All the three cases cited by the learned Counsel for the Respondent are not applicable to the facts involved in the present case. 6. Shri B. Dayal, learned Counsel for the Appellants, has placed reliance on the following cases in support of his contention that the word "pending" used in Section 39 and Section 40 of the U.P. Act No. 13 of 1972 would include appeals which are filed after the commencement of the Act but in which limitation was running when the said Act commenced on 15th July, 1972. As has been stated above, the lower appellate court had decided the appeal on 10th July, 1972 and, therefore, limitation was available to file the instant appeal on 15th July, 1972 when the said Act came into force. The instant second appeal was filed on 9th August, 1972, as stated above. (1) Mst. Nazira Begum Vs. Syed Ali Zaheer, AIR 1974 All 104 , (2) Dilawar Singh v. The Gram Samaj 1972 AWR 557, (3) Gopi Singh v. Deputy Director of Consolidation 1967 AWR 264, (4) Delbert-Evans v. Davies and Watson All ELR Vol. II-page 167, (5) Lakkaju Satyanarayana Vs. Majati Venkatarattamma and Another, AIR 1951 Mad 1044 and (6) Asgarali Nazarali Singaporawalla Vs. The State of Bombay, AIR 1957 SC 503 . (His Lordship then considered the above cases in paras 7 to 10 and proceeded on to observe:) 11. In my view, the aforesaid cases fully support the contention made by the learned Counsel for the Appellants and, therefore, it should be held that the instant second appeal, though filed after 15th July, 1972, should be deemed to be pending on the said date, as the limitation for filing this appeal was still subsisting on the said date. I, therefore, overrule the objection of the learned Counsel for the Respondent that the Appellants are not entitled to the benefit of Section 39 read with Section 40 on the ground that the instant appeal was not pending on the date of the commencement of the U.P. Act No. 13 of 1972. 12. Learned Counsel for the Appellants prays that he intends to amend the pleadings as contemplated u/s 39 read with Section 40 of the U.P. Act No. 13 of 1972, and for the said purpose he prays for three weeks' time to move an application for the amendment of the written statement. The time prayed for is granted. 12. Learned Counsel for the Appellants prays that he intends to amend the pleadings as contemplated u/s 39 read with Section 40 of the U.P. Act No. 13 of 1972, and for the said purpose he prays for three weeks' time to move an application for the amendment of the written statement. The time prayed for is granted. Three weeks' time, therefore, is granted to the learned Counsel for the Respondent to make the necessary amendments in his pleadings. After the expiry of the time granted to the parties, the appeal shall be listed for hearing.