Mohammad Sabir v. Husain — 1979 DIGILAW 531 (ALL)

ORDER K.C. Agrawal, J. - Suit No. 565 of 1971 was filed by the plaintiff for ejectment of the applicant and opposite party No. 2, on the allegations that as the house had been constructed in 1967, the provisions of the U. P. (Temporary) Control of Rent and Eviction Act, 1947 did not apply and that he was entitled to get a decree against the defendants. He had also alleged that respondent No. 2 was the subtenant of Mohd. Sabir. 2. The suit was contested by the defendants. They denied the allegations made in the plaint. The suit was decreed on 28-1-1977. The revision filed by the defendants under Section 25 of the Provincial Small Cause Courts Act was dismissed on 29th Apr. 1978. Aggrieved, the defendant No. 1 Mohammad Sabir has filed the present revision. 3. Since for the point urged, it is not necessary to summarise the findings given .by the courts below, I do not wish to mention the same. The point urged was that since during the pendency of the suit before the Judge Small Causes Court the U. P. Act No. 13 of 1972 had become applicable to the building in question, the plaintiff was not entitled to get a decree for ejectment. In this regard the controversy was about the applicability of Section 39 of the aforesaid Act. Before coming to Section 39, I wish to note that since the suit had been filed in 1971, the question of the bar contained in Section 20 of the aforesaid Act did not arise. 4. Section 39 of U. P. Act No. 13 of 1972 provides for the application of the U. P. Act No. 13 of 1972 to building to which the old Act did not apply. For applying Section 39, it is necessary that the tenant must deposit the entire amount of rent and damages for use and occupation together with interests thereon at the rate of nine per cent per annum and the landlords full cost of the suit. If deposit is made no decree for eviction can be passed except on any of the grounds mentioned in the proviso to sub-sec. (1) or under cls. (g) to (h) of Section 21. 5. In the instant case, on the 9th Dec. If deposit is made no decree for eviction can be passed except on any of the grounds mentioned in the proviso to sub-sec. (1) or under cls. (g) to (h) of Section 21. 5. In the instant case, on the 9th Dec. 1977 the defendant-applicant moved an application under Section 39 of U. P. Act No. 13 of 1972 on the allegations that he had made deposits of rent and mesne profits up to Dec. 1977 along with interest calculated at the rate of 9 per cent per annum and the cost of the trial Court and that of the revision. On behalf of the plaintiff-opposite party the application was contested. He alleged that the defendant had not deposited the entire amount which he was required to be paid under Section 39 of the Act, hence he was not entitled to the benefit of Section 39. The Revising Authority found that the deposit, made by the defendants, was in full compliance with the requirement of Section 39. He, however, held that as the building had been constructed in Sept. 1969, the provision of Section 39 could not be applied. 6. Section 2 of U. P. Act No. 13 of 1972 provides for the exemption from operation of the Act. Sub-sec. (2) of Section 2 lays down that nothing in this Act shall apply to a building during a period of 10 years from the date on which its construction is completed. Explanation appended to sub-sec. (2) of Section 2 lays down as to when the construction of a building shall be deemed to have been completed. For our purposes, the relevant clause is cl. Explanation appended to sub-sec. (2) of Section 2 lays down as to when the construction of a building shall be deemed to have been completed. For our purposes, the relevant clause is cl. (a) which reads: - "(a) 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 are different, the earliest of the said dates and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time: - Provided that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or are occupied separately by the landlord and one or more tenants.-The case of the defendant, taken in the revision before the District Judge was that, since the plaintiff had alleged in the plaint that the house had been constructed in 1967, the Act became applicable after the expiry of 10 years. For this purpose, the defendant filed an application under Section 39. In order to controvert the plea, the plaintiffs filed the copies of the assessment register showing that since the building has been assessed for the first time in Sept. 1969, the Act, did not apply. The controversy therefore, now boils down to the interpretation of cl. (a) of Section 2 (2) of the Act. 7-8. In Om Prakash Gupta v. Digvijendrapal Gupta (1978 (UP) RCC 413), a Division Bench of this Court was called upon to consider this question. It held that the building shall be deemed to have been completed on the date on which the first assessment thereof comes into effect. In the instant case, the plaintiff filed the quinquennial assessment of the year 1968-73 showing that the assessment had been made for the first time on 25th Sept. 1969. It held that the building shall be deemed to have been completed on the date on which the first assessment thereof comes into effect. In the instant case, the plaintiff filed the quinquennial assessment of the year 1968-73 showing that the assessment had been made for the first time on 25th Sept. 1969. Accepting the date given in this assessment, the court below held that the Act could apply on the expiry of 10 years of 1969 on the date on which the revision was decided by him, 10 years had not expired, and hence the Act could not be applied. It, however, appears from the extract of the assessment register that on 25th Sept. 1969 an order had been made by an authority for the assessment of the (house. It does not give the date on which the first assessment came into effect. The making of the order for the purposes of assessment is not relevant for applying cl. (a) of Section 2 (2). The requirement is that the construction of a building shall be deemed to have been completed on the date on which the first assessment comes into effect. Accordingly, in the absence of any finding about the date on which the first assessment came into force, this controversy could not be decided. In this view of the matter, the finding of the court below holding that the Act would apply in Sept. 1979 is liable to be set aside. Since the learned counsel appearing for the applicant did not challenge the other findings, in my view rightly, the judgment of the court below on those points is affirmed. 9. Learned counsel for the appellant, however, argued that since the Revising Court had no power under the law to admit additional evidence, it could not on the basis of the assessment register, filed before it, hold that the building had been constructed in 1969. This submission has no substance. Suffice to mention that the defendant-applicant himself had applied for the benefit of Section 39 of the U. P. Act No. 13 of 1972. This was a new ground taken by the defendant-applicant for being relieved from eviction. The parties were not at issue on this point before the Judge Small Causes. This submission has no substance. Suffice to mention that the defendant-applicant himself had applied for the benefit of Section 39 of the U. P. Act No. 13 of 1972. This was a new ground taken by the defendant-applicant for being relieved from eviction. The parties were not at issue on this point before the Judge Small Causes. As this controversy had arisen for the first time in the revision, the parties were at liberty to bring evidence on record to establish their respective rights. In fact, the defendant-applicant himself raised this controversy and it does not lie in his mouth to assert that the plaintiff could not bring evidence to show that the application filed by the defendant-applicant was liable to be dismissed. At this place I only wish to refer to a judgment of the Supreme Court reported in Laxmi and Co. v. Dr. Anant R. Deshpande, (1973) 1 SCC 37 where the Supreme Court held that a court dealing with revision under Section 115 C. P. C. could take notice of subsequent events. The Supreme Court observed "It is true that the court can take notice of subsequent events. But each notice is taken in order to shorten litigation to preserve rights of both parties and to subserve the ends of the justice, for example, where the court finds that because of altered circumstances like devolution of interest it is necessary to shorten litigation or where the original relief has become inappropriate by subsequent, events or when the court finds that the judgment of the court cannot be carried into effect because of the changed circumstances or when the court finds that the matter is no longer in controversy or that the disputed property is no longer available." The above principles were although laid down in connection with Section 115 C. P. C. but there is no material difference between the nature of the jurisdiction which is conferred by Section 115 C. P. C. and that under Section 25 of the Provincial Small Cause Courts Act. 10. In Shanker Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat ( AIR 1970 SC 1 ), the Supreme Court was called upon to consider the nature of power conferred by Section 115 C. P. C. It held that the jurisdiction which is exercised under Section 115 C.P.C. is a part of the general, appellate jurisdiction of the High Court as a superior court. It observed: - "It is only one of the modes of exercising power conferred by the statute, basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense." Laying down the above law, their Lordships approved the decision of the Privy Council in Raja of Ramnad v. Kamid Rowthen ( AIR 1926 PC 22 ) in which the Privy Council was considering the nature of a civil revision filed under Section 25 of the Provincial Small Cause Courts Act. It held that a civil revision was an appropriate form of appeal from the judgment in a suit of small causes nature. In my view, therefore, the argument of the learned counsel has no substance. 11. Furthermore, Section 40 of U. P. Act No. 13 of 1972 itself lays down that the benefit of Section 39 can be claimed in appeal or revision as well. In this view of the matter defendant-applicant was not justified in attacking the judgment of the Judge Small Causes on the ground stated above. As already observed, he himself invited the decision of the Court on the ground of Section 39 of the Act. 12. For all these reasons, the revision succeeds in part and is allowed. The judgment of the II Additional District Judge, Kanpur dated 29-4-1978 is set aside and he is directed to decide the question of applicability of Section 39 afresh. He will also permit the parties to adduce evidence for deciding this controversy. There shall be no order as to costs.