Suresh Chand v. Bihari Lal Bhatia — 1978 DIGILAW 254 (ALL)

JUDGMENT M.P. Saxena, J. - These are two revision applications under section 115 of the Civil Procedure Code arising out of the judgment and decree dated 28.10.1977 passed by the learned Second Additional District Judge, Mathura. 2. The facts giving rise to these revision-application are that Bihari Lal Bhatia (who will hereinafter be referred to as the plaintiff-opposite party) is the owner of the disputed shop. According to him, it was constructed sometime in 1968 and the provision of U P. Act XIII of 1972 were not applicable to it. It was occupied by Dr. Suresh Chand (who will hereinafter be described as defendant-revisionist) on a monthly rent of Rs. 50/- besides house tax and water tax. The defendant-revisionist fell in arrears of lent from 1.11.1975. The plaintiff-opposite party served a notice of demand and to quit but invain. Thereafter he filed a suit for ejectment of the defendant-revisionist from this shop and for the recovery of Rs. 500/- as arrears of rent and taxes. Pendente lite and future damages were also claimed at the rate of Rs. 90/- per month. 3. The defendant-revisionist contested that suit, inter alia, on the grounds that the shop was constructed before 1968 and the provisions of the said Act were applicable to it, that the notice to quit was invalid ; that he was always willing to pay rent to the plaintiff landlord but as himself refused to accept the same. 4. After going through the evidence on the records, the learned Judge Small Cause Court held that the shop was constructed in 1968 and the provisions of U.P. Act XIII of 1972 were not applicable to it. He further said that the notice to quit was valid. The suit for ejectment and for the recovery of Rs. 455.20 as rent, damages and water tax was decreed. Pendente lite and future damages were awarded at the rate of Rs. 50/- per month subject to payment of court fees. 5. The defendant alone filed a revision application under Section 25 of the provincial Small Cause Court Act. During the pendency of the revision the defendant-revisionist moved two applications. In one application it was alleged that he had come to know that the shop was completed on 20-9-1967. He claimed the benefit of section 39/40 of U. P. Act XIII of 1972 on its basis. During the pendency of the revision the defendant-revisionist moved two applications. In one application it was alleged that he had come to know that the shop was completed on 20-9-1967. He claimed the benefit of section 39/40 of U. P. Act XIII of 1972 on its basis. Certain amount was also deposited by means of the second application. Certain documents were filed. 6. The learned lower revisional court came to the conclusion that the shop will be deemed to have been completed on 31-12-1967 when its completion was recorded by the Municipal Board. As 10 years had not expired from this date benefit of section 39/40 of the Act could not be given to the defendant- revisionist. The notice to quit was held to be valid. The revision application was dismissed on 28-10-1977. Civil Revision No. 2630 of 1977 has been filed against it by the defendant mainly on the ground that he is entitled to the benefit of sections 39/40 of the Act. 7. Civil Revision No. 87 of 1978 has been filed by the plaintiff challenging the finding of the lower revisional court that the shop should be deemed to have been completed on 31-12-1977. According to him it was completed in 1968. 8. The only point involved for decision in these two revisions is whether the defendant-revisionist is entitled to the benefit of section 39/40 of the Act. For this purpose it is necessary to determine whether the provisions of this Act are attracted to this shop. Obviously this Act is not applicable to buildings which have not become 10 years old from the date of their completion. Section 2(2) Explanation I of the Act lays down as to when a building will be deemed to have been completed. Obviously this Act is not applicable to buildings which have not become 10 years old from the date of their completion. Section 2(2) Explanation I of the Act lays down as to when a building will be deemed to have been completed. It says that for the purposes of this sub-section the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction and in the case of a building subject to assessment the date on which the first assessment thereof comes into effect and where the said dates arc different the earliest of the said dates and in the absence of any such record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of construction or guarding the building under construction for the first time). In the instant case the defendant- revisionist took an oscillating position regarding the date of completion of the shop. In the trial court he gave out that it was constructed before 1968. No specific date or month was given. In the revisional court he at first set up that it was completed on 30-4-1966 and then moved an application to the effect that according to the information received by him it was completed on 20.9.1967. Later on copy of quarterly list was filed to show that its completion was recorded on 31.12.1967. The plaintiff opposite party on the other hand contended that the municipal assessment of this shop became first effective from 1 4.68. and it should be deemed to have been completed on that date. The learned lower revisional court placed reliance on the contention of the defendant- revisionist and held that the shop will be deemed to have been completed on 31.12.1967. In my judgment the approach of the learned lower revisional court was correct because assessment is relevant only if the date of reporting to or recording by the municipal board of the completion is not available. In the instant case the defendant-revisionist had tiled satisfactory evidence to show that completion of this shop was recorded by the municipal board on 31.12.1967. Therefore, it will be deemed to have been completed on that date and the period of 10 years is to be reckoned therefrom. In the instant case the defendant-revisionist had tiled satisfactory evidence to show that completion of this shop was recorded by the municipal board on 31.12.1967. Therefore, it will be deemed to have been completed on that date and the period of 10 years is to be reckoned therefrom. Obviously the shop became 10 years old on 31.12.1977 and the provisions of the U. P. Act 13 of 1972 became applicable to it. 9. Section 39 says : "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 amounts 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 percent per annum and the landlord's full costs of the suit, no decree for eviction shall be passed except on any of the grounds mentioned in the proviso to sub-section or in clauses (b) to (g) of sub section (2) of section 20 and the parties shall be entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary." 10. Section 40 says that the benefit of section 39 will be available in pending appeals or revisions also. Therefore, the question which now arises for consideration is whether the defendant-revisionist has complied with the requirements of section 39 within one month from the date of commencement of the Act. It is needless to say in the instant case the date of commencement of the Act with regard to the disputed shop will be 31st of January, 1978. There is no controversy that the defendant-revisionist has deposited Rs. 2086 65 on different dates in the lower court. There is also no controversy that he was to deposit the following amounts : Rent : From 1.11.75 to 6.3.76 at Rs. 50/- per month : Rs. 210/- Damages : From 6.3.76 to 31.1.78 at Rs. 50/- per month Rs. 1141.66 Costs : (1) Trial Court Rs. 264.25 (2) Revisional Court Rs. 50.00 (3) High Court Rs. There is also no controversy that he was to deposit the following amounts : Rent : From 1.11.75 to 6.3.76 at Rs. 50/- per month : Rs. 210/- Damages : From 6.3.76 to 31.1.78 at Rs. 50/- per month Rs. 1141.66 Costs : (1) Trial Court Rs. 264.25 (2) Revisional Court Rs. 50.00 (3) High Court Rs. 60.00 Interest : The plaintiff has calculated interest on rent due from 1.1 1.75 and claimed 146.40 on this score. This is not correct because the rent was regularly deposited by the revisionist in the lower court and no interest can accrue on the amount so deposited because the plaintiff could very well have withdrawn it subject to protest, if any. If there was any delay in depositing it, interest could be claimed for that period. According to the defendant, the amount of interest comes to Rs. 30/-. Even if a rough calculation is made, it will not exceed Rs. 50/-. Therefore, Rs. 50/- were to be deposited as interest. In this manner the total amount which the defendant was liable to deposited upto 31.1.1918 comes to Rs. 1775.91. It may further be stated that the trial court had awarded damages at the rate of Rs. 90/- while section 39 contemplates awarding of damages at the same rate at which rent is payable. However, the balance of Rs. 40/- will also be recoverable by the plaintiff independently of section 39. The Trial Court had also passed a decree for Rs. 155.20 on account of water tax and these two amounts the plaintiff may be entitled to get but not by virtue of sections 39/40 of the Act. Even if these two amounts are included, the total will come to Rs. 1, 1971 /11 as against Rs. 2,086 65 deposited by the defendant. The learned counsel for the plaintiff opposite party has contended that water tax, electricity charges and costs of execution should also have been deposited by the tenant and is this amount is taken into consideration, it will exceed the amount already deposited. I find no force in this contention because there is nothing on the record to warrant that electricity or water tax were part of the rent. There may have been an agreement to the effect that the tenant will pay water tax and electricity charges also independently of rent. I find no force in this contention because there is nothing on the record to warrant that electricity or water tax were part of the rent. There may have been an agreement to the effect that the tenant will pay water tax and electricity charges also independently of rent. Therefore, these two items cannot be deemed to be part of the rent. Section 39 also does not contemplate deposit of water tax and electricity charges. Similarly it does not lay down that costs of execution shall also be deposited. The result of all this discussion is that the defendant has deposited Rs. 2086.65 when upto 31.1.1978 he was liable to deposit Rs. 1775 91 and was further liable to pay Rs. 195.20 as water tax and damages incorporated in the decree (though not under sections 39/40 of the Act.) Since the defendant-revisionist has deposited excess amount decree for eviction liable to be set aside. The plaintiff's revision No. 87 of 1978 is dismissed. Civil Revision No. 2630 of 1977 filed by the defendant is allowed and the decree for eviction passed by the learned Second Additional District Judge is set aside. The plaintiff-opposite party will he entitled to withdraw Rs. 1971.11 out of the amount deposited by the defendant. Parties will bear their own costs of both the revisions. This judgment shall govern both the revisions.