Anil Chandra Chatterji v. Raj Kishore — 1980 DIGILAW 85 (ALL)

JUDGMENT T.S. Misra, J. -Since First Appeal No, 1 of 1977 and Civil Revision No. 607 of 1978 and Civil Revision No. 704 of 1978 raise common questions of law and fact, they are being disposed of by one judgment. 2. The plaintiffs-respondents in the 1st appeal filed a suit against the defendants-appellants for their eviction from the building known as "Pushpraj Chhavigrah" situate at Civil Lines, Faizabad and for the recovery of arrears of rent and damages alleging inter alia that the said building was not governed by .the (U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972) (U. P. Act. No. XIII of 1972) (hereinafter called the Act). The suit was resisted by the defendants who filed their written statements alleging inter alia that the provisions of the Act apply to the said building. The trial court framed eight issues. Issue No. 2 was in the following terms :- "Whether the disputed accommodation is not governed by the U. P. Act No. 13 of 1972 as alleged by the plaintiffs?" The Act came into force on 15th July, 1972. The learned counsel for the defendants-appellants and the plaintiffs-respondents conceded that the construction of the said building was completed prior to the enforcement of the Act i.e. prior to 15th July, 1972. In other words the said building has been in existence prior to 15th July, 1972. The defendants had taken that building on lease from the plaintiffs by an agreement dated 30th January, 1966. Ext. 2, Another agreement was also executed in that behalf on 24th February 1966, Ext. 1. From these two documents also it is quite plain that the construction of the building in question was completed prior to 30th January, 1966. There was, therefore, no dispute between the parties before us that the building had come into existence prior to 15th July, 1972 when the Act came into operation. The trial court decided issue No. 2 in the negative. According to the trial court the Act became applicable to the said building during the pendency of the said suit. There was, therefore, no dispute between the parties before us that the building had come into existence prior to 15th July, 1972 when the Act came into operation. The trial court decided issue No. 2 in the negative. According to the trial court the Act became applicable to the said building during the pendency of the said suit. The trial court decreed the suit against the defendants for the ejectment from the disputed building and for the recovery of Rupees 13,300/- from the defendants as arrear of rent and damages for use and occupation and also for the recovery of pendente lite and future damages for use and occupation at the rate of Rs. 3,800/-per month on payment of court fee on the execution side. The trial court also ordered and decreed that the deposits already made by the defendants in court in the suit and withdrawn by the plaintiffs and the deposit of Rs. 10,000/- under the agreement dated 30th January, 1966 shall be adjusted towards the decretal amount only. This decree was passed by the trial court on a consideration of the evidence on the record and on its findings recorded on all the issues framed by it. Aggrieved by that decision the defendants filed the First Appeal No. 1 of 1977. 3. On 27th April, 1977, this court on an application of the appellants passed the following interim order:- "I have heard the parties counsel. The interim order staying execution of the decree so far as the ejectment is concerned is modified in these terms:- (l) The appellant shall deposit to the credit of the plaintiff the decretal amount as also the pendente lite and future damages for use and occupation at the rate of Rs. 1900/- per month minus the amount already deposited by him within a period of one month in the trial court. (2) The appellant shall furnish bank guarantee in the sum calculated at the rate of 1000/- per month from the date of the decree up-to-date, within a period of two months and he will continue to deposit such bank guarantee at the said rate at the end of each quarter in future until the disposal of the appeal. (3) The appellant may furnish bank guarantee or furnish security of immovable property to the satisfaction of the trial court in a sum calculated at the rate of Rs. (3) The appellant may furnish bank guarantee or furnish security of immovable property to the satisfaction of the trial court in a sum calculated at the rate of Rs. 900/- per month from the date of the decree up-to-date in the trial court within a period of two months. He will continue to furnish such security at the end of each quarter at the said rate until the disposal of the suit. In the event of non-compliance of any of the above conditions the interim order staying execution of the decree for ejectment shall stand vacated." The decree-holders having come to the view that the judgment-debtors had not complied with the order filed an execution application before the trial court. That application was also resisted by the judgment-debtors who filed an application under Section 47, C. P. C. alleging that the decree was not executable inasmuch as it was a nullity and also pleading that they had not committed any default. The executing court allowed that objection vide its order dated 12th July, 1978 holding that the execution application was not maintainable as the decree being a nullity was incapable of execution. Against that order plaintiffs filed the Civil Revision No. 607 of 1978 in this court. The executing court had held, that the judgment-debtors had committed breach of conditions Nos. 2 and 3 laid down in the stay order dated 27th July, 1978 passed by the learned Civil Judge. The defendants, therefore, filed Civil Revision No. 704 of 1978. 4. For the defendants-appellants it was urged at the outset that the suit was not maintainable and was barred by the provisions of Section 20 of the Act inasmuch as the aforesaid building was governed by the provisions of the Act even on 29th April, 1978 (1976) when the suit was filed. We find force in this contention. It is not in dispute that the construction of the aforesaid building was completed prior to 15th July, 1972. The learned counsel for the plaintiffs and defendants have admitted before us that the construction of the building was completed on 1st July, 1966. We find force in this contention. It is not in dispute that the construction of the aforesaid building was completed prior to 15th July, 1972. The learned counsel for the plaintiffs and defendants have admitted before us that the construction of the building was completed on 1st July, 1966. The learned counsel for the plaintiffs submitted that the Act was not applicable to the said building on the date when the suit was instituted inasmuch as period of 10 years from the date of the construction had not expired on 29th April, 1976 and had also not expired on the date of the enforcement of the Act; hence Section 20 of the Act will not bar the suit. The contention, however, lacks merits. It is now concluded by a decision of the Supreme Court in Ratan Lal Shinghal v. Smt, Murti Devi (1979 All WC 752) : ( AIR 1980 SC 635 ). Sub-section (2) of Section 2 provides that except as provided in sub-section (5) of Section 12, sub-section (1-A) of Section 21, sub-section (2) of Section 24, Sections 24-A, 24-B, 24-C or sub-section (3) of Section 29, nothing in this Act shall apply to a building during a period of 10 years from date on which its construction is completed. The exception contained in sub-section (2) of Section 2 of the Act came to be considered in Ratan Lal Shinghal v. Smt. Murti Devi (supra). The Supreme Court held that the said exception was to apply only to such buildings which were constructed after commencement of U. P. Act No. XIII of 1972, that the said provision was prospective and shall apply only to buildings brought into being de novo after the Act came into force. A similar question arose for consideration before a learned single Judge of this Court in Civil Revn. No. 952 of 1978; Bahadur Singh v. Har Bhagwan (1979 All LR (5) 626) and also before a Division Bench in Smt. Radha Devi v. Prescribed Authority, Agra (1979 All WC 770). The building in dispute admittedly was not constructed de novo after the enforcement of the Act. In fact, it was constructed prior to 15th July, 1972. That being so. the provisions of the Act govern that building. The building in dispute admittedly was not constructed de novo after the enforcement of the Act. In fact, it was constructed prior to 15th July, 1972. That being so. the provisions of the Act govern that building. Sub-section (1) of Section 20 of the Act stipulates that save as provided in sub-section (2) no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner. Sub-section (2) of Section 20 provides that suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the grounds mentioned in clauses (a) to (g) of sub-section (2). Admittedly, the suit, out of which the first appeal had arisen was not filed on any of the grounds mentioned in clauses (a) to (g) of sub-section (2) of Section 20 of the Act. The suit for ejectment was, therefore, barred by Section 20 of the Act. The impugned decree for ejectment of the defendants passed in the suit, in these circumstances is not sustainable. 5. The plaintiffs had, however, also claimed a decree for arrears of. rent and damages against the defendants. Since the suit for ejectment has failed, a decree for damages cannot be passed. However, a decree for arrears of rent and pendente lite rent can be passed. The building in question was taken on rent at the rate of Rs. 1900/- per month. The plaintiffs had claimed in the suit arrears of rent from January, 1976. The learned counsel for the plaintiffs as also for the defendants stated before us that a decree for arrears of rent from January, 1966 to 31st December, 1979 may be passed in this appeal at the rate of Rs. 1900/- per month. The suit is, therefore, liable to be decreed against the defendants for a sum of Rs. 91,200/- towards arrears of rent for the period January, 1966 to 3st December, 1979. It was urged by the learned counsel for the defendants-appellants that the defendants have already paid to the plaintiffs a sum more than Rs. 1900/- per month. The suit is, therefore, liable to be decreed against the defendants for a sum of Rs. 91,200/- towards arrears of rent for the period January, 1966 to 3st December, 1979. It was urged by the learned counsel for the defendants-appellants that the defendants have already paid to the plaintiffs a sum more than Rs. 91,200/- and that the said sum is, therefore, liable to be adjusted towards the decree that is to be passed towards arrears of rent and the excess amount may be refunded or may be adjusted towards future rent. 6. In the result, the appeal is allowed in Dart. The impugned decree is set aside so far as it relates to the eviction of the defendants from the building in question. However, in view of the aforesaid statement made by the learned counsel for the parties the suit is decreed against the defendants for a sum of Rupees 91,200/- towards arrears of rent for the period January, 1966 to 31st December, 1979. The parties shall bear their own costs throughout. If the defendants have actually paid any sum to the plaintiffs towards arrears of rent and damages in terms of the order dated 27th April, 1977 or in execution of the impugned decree, the same shall be adjusted against the aforesaid decree for arrears of rent amounting to Rs. 91,200/- and if any sum has actually been paid in excess by the defendants to the plaintiffs, the same shall be refunded or adjusted towards future rent. If there is any subsisting bank guarantee or any other security furnished by the defendants, the same shall be released. 7. In view of the above, the revision petition No. 607 of 1978 filed by the plaintiffs is dismissed but without costs. The Revision Petition No. 704 of 1978 filed by the defendants is also dismissed but without costs.