Hem Raj v. Maheshwari Devi — 1979 DIGILAW 81 (ALL)

JUDGMENT V.K. Mehrotra, J. - A suit for ejectment of the applicant from the accommodation mentioned at the foot of the plaint and for recovery of certain amounts due as arrears of rent etc. was brought by the plaintiff-opposite party Smt. Maheshwari Devi. The applicant claimed that his ejectment could not be directed inasmuch, as the accommodation was governed by the provisions of U.P. Act No. XIII of 1972. The plea of the plaintiff-opposite party in the suit was that the building having been constructed in the year 1964 was not covered by the provisions of U.P. Act No. XIII of 1972. The suit (No. 2044 of 1972) was decided on January 20, 1975 in which it was held that the construction of the premises in suit was of the year 1962. That suit was dismissed on the finding that the plaintiff had neither alleged nor raised any grievance upon which she could obtain ejectment of the applicant under the provisions of U.P. Act No. XIII of 1972. During the pendency of that suit, the applicant claimed to have deposited a sum of Rs. 3360/ which is now said to have been made under the provisions of Rule 5 which was added to Order 15 of the Code of Civil Procedure by the U.P. Civil Law's (Amendment) Act, 1972 (U.P. Act No. XXXVII of 1972). 2. The plaintiff-opposite party served a fresh notice dated December 15, 1975 upon the applicant demanding from him a sum of Rs. 4,700/- being rent for the period between October, 15, 1975 and January 14, 1975 as also between May 15, 1975 and December 14, 1975. No rent for the intervening period from January 15, 1975 to May 14, 1975 was claimed as the same had been paid by the applicant to the plaintiff-opposite party. Since, according to the plaintiff, the applicant did not pay the amount demanded from him through the notice aforesaid, the suit (No. 7 of 1976), out of which the present revision arises, was filed by the plaintiff. In this suit, it was alleged that the applicant had rendered himself liable for ejectment from the premises in suit as he was a defaulter within the meaning of the provisions of clause (a) of sub-section (2) of section 21 of U.P. Act No. XI11 of 1972. The suit was filed on February 3, 1976. In this suit, it was alleged that the applicant had rendered himself liable for ejectment from the premises in suit as he was a defaulter within the meaning of the provisions of clause (a) of sub-section (2) of section 21 of U.P. Act No. XI11 of 1972. The suit was filed on February 3, 1976. The applicant filed a written statement on March 20, 1976 in which, inter alia, the benefit of sub-section (4) of section 20 was sought. - It was alleged that the amount which were to be deposited for being extended the benefit of that sub-section, after giving allowance for the amount allegedly deposited by him in the earlier suit would be deposited by him within the time allowed by law. A sum of Rs. 3,720.00 was deposited by the applicant in the court on Mach 25, 1976. The details of the amount so deposited were contained in paragraph 24 of the written statement. 3. The suit was tried by the District Judge, Kanpur exercising the power of a Judge, Small Causes. On the pleadings of the parties, the learned Judge framed several issues of which issue No. 4 was to the effect whether the defendant was entitled to claim the benefit of section 20(4) of Act No. XIII of 1972. The learned Judge decreed the suit for the ejectment of the applicant from the premises in question. He also decreed the amount claimed by the plaintiff- opposite party with future and pendantes lite damages which was made recoverable by the opposite party on her paying the necessary court-fee. Aggrieved, the defendant has assailed the decree before this court in the present application in revision under section 25. of the Provincial Small Cause Courts Act. The principal submission of Sri S.P. Srivastava, learned counsel for the applicant, has been that on the facts on record the learned trial Judge was not justified in refusing to grant the applicant relief under section 20(4) of the Act in the matter of his ejectment from the premises in suit. of the Provincial Small Cause Courts Act. The principal submission of Sri S.P. Srivastava, learned counsel for the applicant, has been that on the facts on record the learned trial Judge was not justified in refusing to grant the applicant relief under section 20(4) of the Act in the matter of his ejectment from the premises in suit. It has been urged by him that while dealing with issue No. 4, the trial Judge has erroneously taken the view that the amount which was deposited by the applicant in the earlier suit No. 2044 of 1972 between the parties could not be considered to be a deposit of which benefit could be taken by the applicant for purposes of sub-section (4) of section 20. The submission proceeds that the view of the trial Judge that the only amount which could be taken into consideration apart from the one which is paid or tendered to the landlord or deposited in the court at the first hearing of the suit, was the one already deposited by the tenant under sub-section (1) of section 30 of the Act, was manifestly erroneous and that, on such an erroneous assumption about the legal position, the trial Judge had failed to act in accordance with law by refusing to relieve the applicant against his liability for eviction. 4. Sub-section (4) of section 20 was amended by U.P. Act No. XXVIII of 1976. The amendment, in so far as it is material for the decision of the present case, brought in with retrospective effect from the date of the enforcement of U.P. Act No. XIII of 1972, the words "tenders to the landlord or deposits in court" for the words "tenders to the landlord" in sub-section (4) of section 20 and inserted sub-section (6) in section 20 in the following terms : "(6). Any amount deposited by the tenant in sub-section (4) or under Rule 5 Order 15 of the first Schedule to the Code of Civil Procedure 1908 shall be paid to the landlord forthwith on his application without prejudice to the parties pleadings and subject to the ultimate decision in the suits". The aforesaid sub-section (6) was also deemed always to have been inserted in the Principal Act. 5. The aforesaid sub-section (6) was also deemed always to have been inserted in the Principal Act. 5. Rule 5 as originally added to order 15 of Schedule I of the Code of Civil Procedure by U.P. Act No. XXXVII of 1972, which was enforced with effect from September 20, 1972 runs thus : "(5) Striking off defence on non-deposit of admitted rent, etc. In any suit by a lessor for the eviction of a lessee from any immovable property after the determination of his lease, and for the recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease, or of compensation for .the use or occupation thereof, whether instituted before or after the commencement of the Uttar Pradesh Civil Laws Amendment Act, 1972, the defendant shall, at or before the first hearing of the suit, (or in the case of a suit instituted before the commencement of the said Act, the first hearing after such commencement) deposit the entire amount of rent, or compensation for use and occupation, admitted by him to be due, and thereafter throughout the continuance of the suit, deposit regularly the amount of monthly rent, or compensation for use and occupation, due at the rate admitted by him, and in the event of any default in this regard, the Court may unless after considering any representation made by him in that behalf it allows him further time on security being furnished for the amount, refuse to entertain any defence or, as the case may be, strike-off his defence." 6. The result of the addition of Rule 5 aforesaid clearly was that in any suit by a lessor for the eviction of a lessee from any immovable property after the determination of the lease and for recovery from him of rent in respect to the period of occupation thereof during the continuance of the lease and of compensation for use or occupation thereof, the defendant was required at or before the first hearing of the suit to deposit the entire amount of rent or compensation for use and occupation admitted by him to be due and thereafter, throughout the continuance of the suit, to deposit regularly the Amount of monthly rent as compensation for use and occupation due, at the rate admitted by him if he wanted to obviate the situation in which the court could strike out his defence. 7. Sub-section (4) of section 20 of U.P. Act No. XIII of 1972 provides for deposit by him of the entire amount of rent or damages for use and occupation of the building due from him, together with the other amounts mentioned in the provision after deducting therefrom any amount already deposited by him under sub-section (1) of section 30 of the Act. If the deposit, as contemplated by sub-section (4) of section 20 was made, the court in lieu of passing the decree for eviction on the ground of default may pass an order relieving the tenant against his liability for eviction on that ground. The amount which is deposited by a tenant under sub-section (4) of section 20 and any amount deposited by him under Rule 5 Order 15 C.P.C. of first Schedule are to be paid to the landlord forthwith on his application without prejudice to the pleadings of the parties and subject to the ultimate decision in the suits in view of sub-section (6) of section 20. 8. The trial Judge, as noticed above, has taken the view that sub- section (4) of section 20 of U.P. Act No. XIII of 1972 only permits the deduction by a tenant, while paying or tendering to the landlord or depositing in court the amounts required to be deposited by him, of sums which may have already been deposited by him under sub-section (1) of section 30 of the Act. It is the correctness of this view which has to be examined. It is the correctness of this view which has to be examined. If the view taken by the trial Judge in that regard is held to be correct, it could follow that the decree passed by him cannot be characterised as contrary to law. If, on the other hand, it is found that any amount which a tenant may have deposited under Order 15 Rule 5 of the 1st Schedule of the Code of Civil Procedure, could be treated to be an amount of which advantage was available to the tenant while making the deposits under sub-section (4) of section 20 of U.P. Act No. XIII of 1972, the decision of the trial Judge, in that regard, cannot be sustained. 9. What is required by sub-section (4) of section 20 of U.P. Act No. XIII of 1972 to be deposited by the tenant is the entire amount of rent and damages for use and occupation of the building due from him apart from the other sums mentioned in that sub-section. The amount which may have been deposited by a tenant under sub-section (1) of section 20 of the Act are expressly provided for being deducted from the amount required to be deposited by a tenant. The question which, therefore, falls for determination is whether in the absence of express words, it is permissible for a tenant to deduct the amount which may have been deposited by him under Order 15 Rule 5 C.P.C. in an earlier proceedings between him and the landlord in respect of the same premises and which covered either the whole or part of the period involved in the suit in which the benefit of sub-section (4) of section 20 of U.P. Act No. XIII of 1972 is being sought by him. 10. Appearing for the plaintiff-opposite party, Sri Triloki Nath, his counsel, has contended that on the plain language of sub-sections (4) and (6) of section 20 of the U.P. Act No. XIII of 1972, it must be held that the tenant is entitled to deduct only the amount deposited by him under sub-section (1) of section 30 of that Act or which may have been deposited in the same suit under Order 15 Rule 5 of the Code of Civil Procedure. 11. 11. The U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, (U.P. Act No. XIII of 1972 is a beneficent piece of legislation and was intended for the benefit of tenants in view of shortage of housing accommodation in the State. Dealing with section 39 of that Act, which also enables a tenant for whose eviction from any building to which U.P. Act No. III of 1947 did apply and which was pending on the date of commencement of U.P. Act No. XIII of 1972, to relieve himself from the liability for eviction by depositing in the court where the suit was pending the entire amount of rent and damages for use and occupation together with interest thereon at the rate of 9% per annum and the landlord's full cost of the suit within the time provided in that section, a Division Bench of this Court observed in the case of R.D. Ram Nath and another v. Girdhari Lal and another, 1975 R.C.J. 569, that :- "Section 39 contemplates deposits of only such amount which have not already been either paid to the landlord or deposited in a court either in pursuance of some statutory provision entitling the tenant to make such a deposit or in pursuance of an order of court. It any of the amounts mentioned in section 39 have already been paid to the landlord, that amount is not due and no question of depositing it can arise. Like-wise, if any amount contemplated by section 39 has been deposited in a court either in pursuance of some statutory provision, entitling the tenant to make such deposit or in compliance with an order of the court, such amount will also not be due and will not have to be deposited again in the appellate or revisional court. Only such amount referred to in section 39 would have to be deposited within one month of the commencement of that Act in the appellate or revisional court which had neither been paid to the landlord nor deposited in the manner stated above in the court before the commencement of this. Act and remains payable by the tenant on the date of commencement of the Act which he would be bound to deposit, within one, month of the commencement of the Act in the appellate or revisional court." 12. Act and remains payable by the tenant on the date of commencement of the Act which he would be bound to deposit, within one, month of the commencement of the Act in the appellate or revisional court." 12. The observations aforesaid clearly effectuate the object of the Act and bring out the intention with which the Legislature incorporated a provision like section 39 in the Act enabling the tenant to relieve himself of the liability for eviction from the premises in suit. Sub-section (4) of section 20 of the Act also clearly was enacted with the same object and should, in my opinion, be construed in a liberal manner so as to effectuate the purpose with which it was enacted by the Legislature. The observations of the Division Bench extracted above should apply equally to the requirement as to the amounts to be paid or tendered to the landlord or deposited by a tenant in court in that provision. In other words, the tenant should be called upon to pay or tender to the landlord or deposit in court only such amount which remains payable after deducting the amount deposited by him under section 30(1) of the Act or in pursuance of some statutory provision like Rule 5 Order 15 C.P.C. If sub-section (4) of section 20 were to be literally interpreted, as contended for by the learned counsel for the plain tiff- opposite party, the result might well be that a tenant may have to deposit an amount twice over which he may already have deposited under Rule 5 Order 15 C.P.C. Such a situation could never have been intended by the Legislature. Mere absence, therefore, of express words enabling the tenant to deduct, for purposes of a deposit under section 20(4) of the Act, an amount deposited by him under Order 15 Rule 5 C.P.C. would not mean that even though some amount has already been deposited by him under Rule 5 aforesaid, he is required to deposit it once again for purposes of section 20(4) of the Act. The provisions of a beneficient Act like U.P. Act No. XIII of 1972 should be construed in a broad and reasonable way and not in a manner which would lead to unreasonable results. 13. The provisions of a beneficient Act like U.P. Act No. XIII of 1972 should be construed in a broad and reasonable way and not in a manner which would lead to unreasonable results. 13. It has been noticed above that any amount which is deposited by a tenant under Rule 5 Order 15 C.P.C. is, by virtue of sub-section (6) of section 20 of the Act, payable forthwith to the landlord on his application. In such a situation, it cannot be said that the amount which has been deposited by a tenant in pursuance of the statutory provision contained in Rule 5 Order 15 C.P.C. and is payable, upon his application, forthwith to him should be considered to be an amount which is still due from the tenant when a deposit is made by him at the first hearing of the suit under section 20(4) of the Act. It has to be kept in mind that soon alter the enactment of U.P. Act No. XIII of 1972, which was enforced with effect from July 15, 1972, the same Legislature incorporated Rule 5 in Order 15 of the Code of Civil Procedure by U.P. Act No. XXXVII of 1972 which came into effect from September 20, 1972. These provisions should, therefore, be construed and applied in harmony as together they would constitute a single code. 14. The question which still remains to be examined is whether an amount deposited under Rule 5 Order 15 C.P C. not in the suit in which the benefit of section 20(4) of the Act is sought but in an earlier suit between the parties relating either wholly or in part to the same period as is involved in the latter suit and in respect of the same premises could be taken into account while determining the amount which is to be deposited by a tenant under section 20(4) of the Act. To my mind, the fact where the amount which is sought to be deducted from the one required to be deposited by a tenant under section 20(4) of the Act was deposited by him, in the aforesaid circumstances, in the earlier suit or in the suit in which the benefit of sub-section (4) of section 20 of the Act is sought, in pursuance of the statutory provisions of Rule 5 Order 15 C.P.C. will hardly make a difference. After all, what is to be determined is the amount which, on the date of the deposit under section 20(4) of the Act, is due from the tenant. An amount though deposited in the earlier proceedings and available for payment to the landlord, in terms of sub-section (6) of section 20 of the Act, in pursuance of statutory provisions of Rule 5 Order 15 C.P.C. cannot be considered to be an amount due from the tenant for purposes of the deposit to be made by him under section 20(4) of the Act. It is the fact of deposit of an amount in pursuance of Rule 5 Order 15 C.P.C. which renders the deposit of the said amount afresh under section 20(4) of the Act unnecessary and not the fact that the deposit was made in an earlier suit or in the one in which the benefit of sub-section (4) of section 20 is being claimed. The deposit once made albeit in an earlier suit would ensure for the benefit of the tenant if it relates to the same premises and is in respect of a period which is also involved in the suit in which the tenant is claiming protection under section 20(4) of the Act. 15. Since the learned District Judge proceeded on the basis that the deposit made by the applicant in the earlier suit No. 2044 of 1972 could not be taken into account at all for purposes of determining the question of the deposit to be made by the applicant for being extended the benefit of section 20(4) of the Act in the suit giving rise to the present application in revision, it is obvious that the decree passed by him is not in accordance with law in so far as it relates to the eviction of the appellant from the premises in suit. 16. 16. Shri Triloki Nath has strenuously contended that the applicant is not entitled to claim the benefit of the deposit made by him in the earlier suit also for the reason that it has neither been pleaded nor asserted by him that the said deposit was made by him in pursuance of Rule 5 Order 15 C.P.C. He has, in this connection, drawn my attention to the averments made in the plaint in which there is no express mention that the deposit made by the applicant in the earlier suit was in pursuance of Rule 5 Order 15 C.P.C. Shri Srivastava has, however, contended that even though it was not expressly averred in the plaint that the deposits which were made in the earlier suit were in pursuance of Rule 5 Order 15 C.P C. yet from the nature of deposits as detailed in paragraphs 22 and 24 of the plaint, it was clear that they were attributable only to rule 5 of Order 15 C.P.C. in the earlier suit. The submission in this respect made by Sri Srivastava is that if it is found that the deposits made by the applicant in the earlier suit were referable to Rule 5 Order 15 C.P.C., the mere non-mention of the said Rule would not change the character of the deposit. Another submission of the Sri Triloki Nath for the plaintiff-opposite party is that factually also the deposit was not made in the earlier suit in accordance with Rule 5 Order 15 C.P.C. and within the time in which it has to be made. Besides, according to the learned counsel, the amount allegedly deposited by the applicant in the earlier suit having not been paid to the plaintiff, as noticed by the trial Judge in his judgment, could not be treated as not due from the applicant. Consequently, the applicant was bound to have deposited that amount afresh if he wanted to avail of the benefit of sub-section (4) of section 20 of the Act. 17. The question whether the amount allegedly deposited by the applicant in the earlier suit was in conformity with Rule 5 Order 15 C.P.C. requires to be gone into. Consequently, the applicant was bound to have deposited that amount afresh if he wanted to avail of the benefit of sub-section (4) of section 20 of the Act. 17. The question whether the amount allegedly deposited by the applicant in the earlier suit was in conformity with Rule 5 Order 15 C.P.C. requires to be gone into. In case, it is found that it had been deposited in accordance with that provision, fact that, in the circumstances of the instant case, the plaintiff was not able to withdraw it for some reason different from its non- availability for payment to him would not change the legal position that while in deposit in accordance with Rule 5 Order 15 C.P.C., the amount could not be characterised to be still due from the defendant-applicant for purposes of section 20(4) of the Act. 18. Another submission which has been pressed on behalf of the plaintiff opposite party is that the amount deposited by the applicant in the trial court had not been deposited at the first hearing of the suit and on that account as well, the applicant was not entitled to be relieved of his liability for ejectment from the premises in suit. There is, however, in this respect no clear finding by the learned District Judge before whom, it is argued, that this aspect was also urged. This is again a question which requires to be determined as a fact. Likewise, the grievance of the opposite party that in spite of a specific plea on behalf of the plaintiff contained in the replication of the plaintiff, in reply to the assertions made in paragraph 26 of the written statement of the defendant-applicant, to the effect that the instant case was covered by the proviso to sub-section (4) of section 20 of the Act, the trial Judge had failed to consider and record a finding thereon has to be examined with reference to the pleadings of the parties and the evidence led by them in that regard. 19. 19. On the view taken by me that the decree passed by the trial Judge was not according to law, inasmuch as, it proceeded upon an erroneous assumption regarding the legal position about the question whether an amount deposited by a tenant under Rule 5 Order 15 C.P.C. could be deducted by him while making a tender deposit under sub-section (4) of section 20 of the Act, the matter requires to be gone into afresh by the learned Judge. While doing so, he would also go into the question about the nature and correctness of the deposits allegedly made by the applicant in the earlier suit No. 2044 of 1972 as well as the question whether the present case was covered by the proviso to sub- section (4) of section 20 of the Act, and also about the tender or deposit in the instant case having been made by the applicant at the first hearing of the suit or not. 20. The result, therefore, is that the present application in revision succeeds and is allowed and the decree of the trial court, only in so far as it relates to the ejectment of the defendant-applicant from the premises in suit is set aside. The case is remanded back to the learned Judge for hearing afresh and determination of the question about the liability of the applicant for being evicted from the suit premises, in accordance with law and in the light of the observations made by me above. The applicant would be entitled to his costs.