Prem Pal Gupta v. Baboo Ram Garg — 1978 DIGILAW 18 (ALL)

JUDGMENT M.P. Saxena, J. - This is a defendant's revision against the judgment and order dated 2.6.1976 passed by the District Judge, Bulandshahr. 2. The plaintiff-opposite party is the owner of house No 296/297 situate in Mohalla Prabhu Dayal in the town of Jehangirabad, District Bulandshahr. The defendant-revisionist occupied a portion of it (consisting of two rooms, one courtyard, a Baithak or shop) as a tenant on a monthly rent of Rs. 31/- The Baithak or shop was let out at Rs. 15/- per month while the remaining portion was let out at Rs. 16/- per month. According to the plaintiff, the defendant was also liable to pay Rs. 8/- per month as electric charges. He tell in arrears of rent from 1.10.1970 and a notice of demand and to quit was served upon him on 28.5.73 but the defendant neither paid anything nor vacated the disputed portion. Hence the plaintiff filed the suit for his ejectment and for the recovery of arrears of rent etc. 3. The defendant-revisionist contested that suit, inter alia, on the ground that he was a tenant of the disputed portion on a rent of Rs. 16/- per month and not Rs. 31/- per month ; that there was no agreement to pay Rs. 8/- per month as electric charges because he was having a sub-meter and these charges were paid by him according to the electricity consumed ; that he was always willing to pay the rent but the plaintiff himself did not take it and he had to deposit it under section 7-C of U. P. Act III of 1947 and section 13 of U.P. Act XIII of 1972 and that the plaintiff used to purchase milk from him and adjusted its price towards rent. Therefore, bulk of the amount was paid and the amount claimed was excessive. It may be stated here that the defendant- revisionist did not challenge the validity of the notice in his written statement but the learned trial court framed an issue on it. 4. After going through the evidence on the record the trial court came to the conclusion that the defendant was a tenant at Rs. 31/- per month and there was no agreement to pay electric charges at the rate of Rs. 8/- per month. These charges were separately payable by the defendant according to the electricity consumed. 4. After going through the evidence on the record the trial court came to the conclusion that the defendant was a tenant at Rs. 31/- per month and there was no agreement to pay electric charges at the rate of Rs. 8/- per month. These charges were separately payable by the defendant according to the electricity consumed. He further held that there was no substance in the defendant's contention that he used to supply milk and its price was adjusted towards rent. The notice to quit was held to be valid. Accordingly the suit for ejectment and for the recovery of arrears of tent at the rate of Rs. 31 /- per month and future damages at the same rate was decreed. The plaintiff was directed to withdraw Rs. 1639/- deposited by the defendant as security under section 17 of the Small Cause Courts Act. This order was passed on 1.11.1975. 5. The defendant filed a revision application under section 25 of the Small Cause Courts Act and the learned lower revisional court agreeing with the findings of the trial court, dismissed it on 2.6.1976. In that court benefit of section 20(4) of the U.P. Act XIII of 1972 was also claimed but he was held to be not entitled to it. 6. The learned counsel for the revisionist has urged three points before this court. In the first place it is urged that two portions of the building were let out by two separate contracts on a rent of Rs. 16/- and Rs. 15/- respectively and the tenancy in respect of two portions could not be terminated by means of a single notice. Both the learned lower courts negatived this contention and in my judgment, rightly. There is no manner of doubt that the Baithak (also described as shop) was let out at Rs. 15/- per month and the remaining disputed portion was let out at Rs. 16/- per month. The crucial point, however, for consideration is whether these two portions were let out by means of two separate contracts of tenancy or they were given by means of one contract though the rent of the two portions was apportioned separately. In para 2 of the plaint the plaintiff opposite party clearly averred that both the portions were let out to the defendant by means of one contract though he was liable to pay Rs. In para 2 of the plaint the plaintiff opposite party clearly averred that both the portions were let out to the defendant by means of one contract though he was liable to pay Rs. 15/- per month for the Baithak and Rs. 16/- per month for the remaining portion. In his written statement the defendant-revisionist did not challenge it. On the other hand he also alleged that there was one contract. In para 2 of his written statement he gave out that he was a tenant of the entire disputed portion on Rs. 16/- per month. In para I1 he was inclined to say that the house and Baithak i.e., the entire building let out to him formed part If one house and the Baithak or shop was inseparable from the other portion. On para 12 he had stated that he was a tenant of the disputed portion from 1964. These averments in the written statement make it abundantly clear that according to the defendant himself the two portions were not separable from each other and were let out by means of one contract. In his statement on oath the defendant-revisionist reiterated the same. On 27.10.72 he had moved an application before the Municipal Board for assessment of the house at the rate of Rs. 31/- per month. The learned lower courts rightly held that this document purported to bear the signatures of the defendant. It also points to the conclusion that the defendant treated the entire disputed portion in his tenancy the result of one contract. He had replied the notice to quit sent by the plaintiff. The reply is Ex.-6 and in it also it was admitted that the entire disputed portion was let out to him by means of one contract of tenancy. It was, therefore, rightly held that both the portions were let out to the defendant by means of one contract and the tenancy in respect thereof could be terminated by a single notice. 7. The second contention is that a single suit for ejectment from two portions separately let out could not be filed. It suffers from the same infirmity as pointed out in relation to the first contention. In view of the facts stated above the suit was clearly maintainable. 8. Lastly, it is urged that the defendant-revisionist was entitled to the benefit of section 20(4) inasmuch as he had deposited Rs. It suffers from the same infirmity as pointed out in relation to the first contention. In view of the facts stated above the suit was clearly maintainable. 8. Lastly, it is urged that the defendant-revisionist was entitled to the benefit of section 20(4) inasmuch as he had deposited Rs. 1639/ on 31.10.73 and had deposited Rs. 48/- in court under section 3-G of the U.P. Act XIII of 1972 and it was sufficient to meet the requirements of section 20(4). 1 have given my anxious consideration even to this contention and I find no force in it. The relevant portion of section 20(4) reads : "In any suit for eviction on the ground mentioned in clause (a) of subsection (2) if at the first hearing of the suit, the tenant unconditionally pays or tenders to the landlord or deposits in court the entire amount of rent and damages for use and occupation of the building due from him (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 landlord's costs of the suit in respect thereof after deducting therefrom any amount already deposited by the tenant under sub-section (1) of section (3), the court may in lieu of passing it decree for eviction on that ground pass an order relieving the tenant against his liability for eviction on that ground." 9. In the instant case the suit was filed on 28.7.73 and was decreed ex-parte on 12.10.1973. An application for setting aside the ex-parse decree was made on the same day. The defendant-revisionist applied for furnishing security but his application was rejected on 15.10.1973 and he was required to deposit the security in cash. Therefore, on 31.10.73 he deposited Rs. 1639/-. 10. In this court the learned counsel for the revisionist showed a tender by means of which the defendant was alleged to have deposited Rs. 48/- under section 30 of the Act on 12.7.1973. Since it is not on the record it cannot be taken notice of. 11. The exparte decree was set aside on 19.1.1974 and 29.3.1974 was fixed for final hearing. On this date the defendant filed his written statement and examined witnesses. 48/- under section 30 of the Act on 12.7.1973. Since it is not on the record it cannot be taken notice of. 11. The exparte decree was set aside on 19.1.1974 and 29.3.1974 was fixed for final hearing. On this date the defendant filed his written statement and examined witnesses. The first question for consideration is as to which date shall be regarded as the date of first hearing of the suit, i.e. 12.10.1973 when the exparte decree was passed or 29.3.1974 when the defendant filed his written statement and examined witnesses. By Amending Act No. 28 of 1976 an Explanation has been added to Section 20(4) according to which the expression 'first hearing' means the first date for any step or proceeding mentioned in the summons served on the defendant. In Nyota Ram v. Kartar Singh, 1977 All R.C. 264, it has, however, been held that the explanation is not retrospective. Therefore, the date of first hearing in this case is to be determined independently of the Explanation. Prior to it the view was that when the Court applier its mind to the case and issues are framed that will be the first date of hearing. From this point of view 29.3.1974 will be regarded as the first date of hearing. 12. The next question is whether Rs. 1,639/- deposited as security under Section 17 of the Small Cause Court Act can be regarded as a deposit under Section 20(4) of the Act so as to entitle the tenant to the benefit of this provision. A perusal of Section 20(4) makes it clear that the entire amount contemplated or deposited in court at the first hearing. The only deduction permitted is in respect of deposit under Section 30 of the Act. It nowhere says that amount deposited under section 17 of the Small Causes Court Act will also be deducted from the amount which the tenant should pay, tender to the landlord, or deposit in court. In the case of Bhikka Lal v. Munni Lal, 1974 R.C.J. 77, the question arose as to what is the position of security deposited under Order 41 Rule 5, Civil Procedure Code. It was held that the amount deposited as security under Order 41 Rule 5, Civil Procedure Code does not ipso facto without an order of the court become the property of the decree-holder. It was held that the amount deposited as security under Order 41 Rule 5, Civil Procedure Code does not ipso facto without an order of the court become the property of the decree-holder. He can withdraw the amount only by an application to the court for executing his decree by payment out of the amount in deposit in court as security. So far as the amount deposited as security under section 17 of the Small Cause Courts Acts is concerned, the position is the same as it does not ipso facto become available to the decree-holder. If the defendant had given out at the time of making that deposit that it may be treated as a deposit under section 20(4) also or the court had passed an order to that effect the position would have been different. In the instant case neither the defendant-revisionist gave any such application nor the court passed any order up to 29.3.74, the first date of hearing in this case. It was on 20.1.1975 that the learned trial court at the time of passing the decree said that the amount deposited under section 17 shall be withdrawn by the plaintiff. It was long after the first date of hearing and no advantage can be claimed from this order. In the case of Baldeoraj v. D.N. Arora, Civil Rev. 2296 of 1976 decided on 7-12-1977, also a similar view has been taken by this Court. I am, therefore, of the view that the defendant-revisionist cannot treat the deposit of Rs. 1,639/- as payment under section 20(4), if it is ruled out of consideration there can be no manner of doubt that Section 20(4) has not been complied with and its benefit cannot be given. 13. The revision application has, therefore, no force and is dismissed with costs on parties.