Sabir Husain v. Nisar Ahmad — 1980 DIGILAW 496 (ALL)

JUDGMENT K. M. Dayal, J. -This is a plaintiffs second appeal. The suit was filed by the plaintiff against the defendant for his ejectment from the accommodation on the basis of tenancy. The decree was claimed on the ground that tenancy of the defendant has been terminated and the provisions of U. P. Temporary Control of Rent and Eviction Act did not apply to the disputed accommodation and, therefore, the defendant was liable to ejectment. 2. The suit was decreed by the trial court. An appeal was filed by the defendant against the decree. During the pendency of the appeal U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act was enforced from 15th July 1972. The building was more than 10 years old on that date and consequently the provisions of that Act applied to the said building. 3. The defendant moved an application under Section 39 read with Section 40 of the aforesaid Act claiming relief from ejectment. According to the defendant a sum of Rs. 1993/43 was due from him but he deposited Rs. 2043/42p. The defendant in para- graph 10 of his application under Section 39/40 made clear that he was depositing two months rent in excess of the amount due which could be adjusted towards any deficiency. In case there was no deficiency, that amount was to be adjusted towards the rent of the months of August and September, 1972. The lower appellate court found that the amount of Rs. 1993/43p. was short by Rs. 30/- but as the defendant had deposited two months rent in excess for adjustment towards such shortage, gave the defendant relief under Section 39/40 of U. P. Act No. XIII of 1972. The plaintiff has now come up in appeal. 4. The plaintiff moved an application under Order 41, Rule 27, C. P. C. and has filed a Photostat copy of the application dated 15th March 1973 moved by the defendant in Misc. Case No. 397 of 1973 under Section 30 of the said Act. By that application the defendant contended that the rent up to 30th September 1972 was paid in Civil Appeal No. 181 of 1971. He proposed to deposit the rent from 1st October, 1972. Case No. 397 of 1973 under Section 30 of the said Act. By that application the defendant contended that the rent up to 30th September 1972 was paid in Civil Appeal No. 181 of 1971. He proposed to deposit the rent from 1st October, 1972. The learned counsel filed the aforesaid copy contending that this paper was not available when the appeal was decided by the first Appellate Court and, therefore, he was entitled to file the same. The counter-affidavit has been filed by the defendant-respondent. 5. After hearing the counsel for the parties and looking to the facts of the case I feel that this paper should be admitted. I accordingly allow the application. 6. The sole argument of the learned counsel for the appellant was that as the defendant in his application dated 15th March 1980 filed under Section 30 of U. P. Act No. XIII of 1972 contended that he had deposited the rent up to September 1972 in the appeal before the court below, the only conclusion could be that he did not adjust Rs. 60/- (Rs. 30/- that were found to be due) towards the amount under Section 39/40 of the Act. His argument is not correct. On the date when the judgment was pronounced by the lower appellate court the entire amount was deposited. If the defendant subsequently in making deposit under Section 30 either dishonestly or under a mistake claimed that rent up to 30th September 1972 was paid, though after the adjustment it was only up to 31st August 1972. It could not be said that by the subsequent conduct the judgment or decree of the court below could be vitiated. The remedy of the plaintiff in such a case was to oppose the application under Section 30 as having been filed with incorrect allegations. The other remedy could be to demand the rent for that period i.e. one month and in case of its non-payment sue the defendant I as a defaulter. The wrong allegation i in the subsequent application under Section 30 could not vitiate or invalidate the judgment of the court below. Under the circumstance the contention of the appellant that the defendant had not complied with the provisions of Section 39/40 of the Act cannot be accepted. 7. In the result, the appeal fails and is dismissed. There will be no order as to costs.