Nain Singh v. Mani Ram — 1979 DIGILAW 108 (ALL)

JUDGMENT V.K. Mehrotra, J. - This is a defendant's application in revision under section 115 C.P.C. 2. Mani Ram the plaintiff opposite party filed a suit on January 1, 1973 for the ejectment of the defendant-applicant from a shop and for recovery of certain amount claimed as arrears of rent and damages etc. This was filed after the applicant had failed to pay the amount claimed as due against him, in spite of service of notice of demand by the plaintiff by which the tenancy of the applicant had also been terminated. Apart from the claim of ejectment based on the ground of default, the plaintiff sought the eviction of the applicant also on the ground that he had materially altered the accommodation in suit. 3. It appears that at some stage the suit proceeded and was decreed ex-parte against the applicant. This was on August 10, 1973. An application for setting aside the ex-parte decree was filed by the applicant after complying with the proviso to section 17(1) of the Provincial Small Cause Courts Act under the provisions whereof the suit was being tried. The trial Judge set aside the ex-parte decree where after the applicant filed a written statement on February 8, 1974. In this written statement, the applicant countered the allegations made in the plaint and denied that he was either in default or had materially altered the accommodation. He also pleaded the notice served upon him was not in accordance with law. 4. The learned Judge, Small Causes, Bulandshahr decreed the suit on August 7, 1974 only is so far as it related to the recovery of arrears of rent. He, however, dismissed it in respect of the relief for the ejectment of the applicant. The relief for ejectment was refused on the ground that the notice by which the plaintiff purported to terminate the tenancy of the applicant was not in accordance with law. Aggrieved, the plaintiff assailed the decree, is so far as it related to ejectment, in a revision under section 25 of the Provincial Small Cause Courts Act. 5. The learned District Judge, Bulandshahr dis-agreed with the Trial Judge on the question of the validity of the notice. He took the view that the notice was in accordance with law. On that finding, he modified the decree and granted the relief of ejectment as well. 5. The learned District Judge, Bulandshahr dis-agreed with the Trial Judge on the question of the validity of the notice. He took the view that the notice was in accordance with law. On that finding, he modified the decree and granted the relief of ejectment as well. Hence, the present application in revision by the defendant. 6. Sri B.D. Tripathi appearing for the defendant-applicant has urged that compliance with the proviso to sub-section (1) of section 17 of the Provincial Small Cause Court Act was made by the applicant by making a deposit of the amount due under the ex-parte decree against him. He has submitted that, inasmuch as. When the suit was heard for the first time after the setting aside of the ex-parte decree, the amount so deposited by the applicant was more than enough to fulfil the requirement of the deposits to be made by the applicant for being relieved of the liability for his eviction under section 20(4) of U.P. Act No. XIII of 1972. The submission is that, inasmuch as, the amount for obtaining the benefit of sub-section (4) of section 20 of U.P. Act No. XIII of 1972 could also be deposited by the applicant at or before the first hearing of the suit in the court and an amount, sufficient to cover that which was so required to be deposited, had already been deposited by the applicant in compliance with the proviso to section 17(1) of the Provincial Small Cause Courts Act it was incumbent upon the Trial Judge to have relieved the applicant of his liability for eviction. 7. Sri S.P. Srivastava, learned counsel for the plaintiff-opposite party has, however, contended that, in as much as, the suit had already been decreed ex-parte and the deposit was admittedly made in compliance with the proviso to section 17(1) of the Provincial Small Cause Courts Act, after such ex-parte decree, it could not justifiably be urged that the deposit was either made in the suit or at or before the first hearing thereof. According to his submission, therefore, the applicant could not claim the benefit of sub-section (4) of section 20 of U.P. Act No. XIII of 1972. According to his submission, therefore, the applicant could not claim the benefit of sub-section (4) of section 20 of U.P. Act No. XIII of 1972. He has also argued that the provisions of sub-section (4) of section 20 of U.P. Act No. XIII of 1972, as they then stood, did not empower the applicant to make a deposit in court and only enabled him either to pay or tender it to the landlord, the deposit made by the applicant was of no avail. He has further urged that the decision of the Trial Judge and that of the learned District Judge in revision being in accordance with law, as it then was, cannot be said to suffer from an error of nature which may be corrected by this court under section 115 C P.C. Another submission of Sri Srivastava Is that the question whether due compliance has been made by the applicant of the requirement of sub-section (4) of section 20 of U.P. Act No. XIII of 1972 is yet debateable. 8. Sub-section (4) of section 20 of U.P. Act No. XIII of 1972 was amended by U P. Act No. XXVIII of 1976. Section 13(b) of U.P. Act No. XXVIII of 1976 provided that in sub-section (4) of section 20 of U.P. Act No. XIII of 1972, for the words "tenders to the landlord", the words "tenders to the landlord or deposits in the court" shall be substituted and deemed always to have been substituted. 9. The effect of the aforesaid amendment clearly is that the words "or deposits in the court" shall be deemed to have been enacted by the Legislature from the date of the enforcement of U.P. Act No. XIII of 1972, namely, July 15, 1972. Obviously, therefore, it would be open to a defendant in a suit for his eviction brought on the ground of default in payment of rent to have deposited the amount contemplated by sub-section (4) of section 20 of U.P. Act. No. XIII of 1972 straight-away in the court without paying or tendering the same to the landlord. 10. It is undisputed that before that ex-parte decree against the applicant was set aside by the Trial Judge, compliance with the proviso to section 17(1) of the Provincial Small Cause Courts Act was necessary. No. XIII of 1972 straight-away in the court without paying or tendering the same to the landlord. 10. It is undisputed that before that ex-parte decree against the applicant was set aside by the Trial Judge, compliance with the proviso to section 17(1) of the Provincial Small Cause Courts Act was necessary. According to the submission of the learned counsel for the applicant, such compliance was made by actually depositing the amount due from the applicant under the ex-parte decree. The ex-parte decree having been set aside the suit having been posted for trial afresh, it is obvious that the amount so deposited was a deposit in the court which was trying the suit out of which the present revision arises. After the setting aside of the ex-parte decree, the first hearing of the suit would be the date on which the Trial Judge applied his mind to the facts of the case and took proceedings in the suit. As noticed above, a written statement was filed by the applicant in the case after the ex-parte decree had been set aside. Plainly, therefore, the first hearing of the suit took place subsequent to the date when the applicant had, according to his case, deposited the amount in compliance with the proviso to section 17(1) of the Act In these circumstances, the deposit (if made as alleged by the learned counsel for the applicant) would be a deposit before the first hearing of the suit (see Krishnalal v. Lala Harendra Kumar 1978 ALL. LR. 789. In that case, K. N. Singh, J. held that a deposit made after the setting aside of the ex-parte decree, in terms of sub-section (4) of section 20 of U P. Act No. XIII of 1972, would be a deposit at or before the first hearing of the suit. 11. In the state of law, as it stands today, it is clear that it was incumbent upon the learned District Judge to have gone into the question as to whether the applicant was entitled to be relieved of his liability for ejectment from the premises in suit. 11. In the state of law, as it stands today, it is clear that it was incumbent upon the learned District Judge to have gone into the question as to whether the applicant was entitled to be relieved of his liability for ejectment from the premises in suit. On account of the deposit made by him in compliance with the proviso to section 17(1) of the Provincial Small Cause Courts Act, due to the provisions of sub-section (4) of section 20 of U P. Act No. XIII of 1972 and, inasmuch as, he has not done so, it is clear that his decision directing the ejectment of the applicant from the premises in suit cannot be up-held. In fact, the Trial Judge should go into that question now. 12. The application in revision, consequently, succeeds and is allowed. The decree for ejectment of the applicant from the premises in suit is set aside and the case remanded back to the Trial Judge for determining the question about the adequacy of the deposit made by the applicant in compliance with the proviso to section 17(1) of the Provincial Small Cause Courts Act for purposes of section 20(4) of U P. Act No. XIII of 1972 as also for determining as to whether the requirements of that provision have otherwise also been fulfilled. The question about the grant or otherwise of relief of ejectment in favour of the plaintiff opposite party shall, thus, be re-considered by the trial court in accordance with law and in the light of the observations made above. Parties are directed to bear their own costs in this revision.