Ram Prasad v. Ganga Prasad — 1982 DIGILAW 1335 (ALL)

JUDGMENT A. Banerji, J. - Ram Prasad the tenant has filed this writ petition challenging the order of the Additional District Judge, Bulandshahr, dated 25th October, 1976 in a revision u/s 25 of the Provincial Small Cause Courts Act. 2. Respondents 1, 2 and 3 are the landlords. They filed a suit for possession over the suit property after ejectment of the tenant Ram Prasad and for recovery of Rs. 24/- and for pendente lite and future mesne profit at the rate of Rs. 30/- per month. A notice determining the tenancy was served on the tenant on the 5th January, 1971, and the plea was that the suit could be decreed under the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter referred to as the Act. 3. The suit was contested by the Defendant and the principal contention was that the construction was of the year 1962 and the provisions of the Act were not applicable and the suit was barred by the Act. Another plea was that the suit was barred by Section 39 of the Act. The trial Court held that the provisions of the Act were fully applicable to the property in suit. It was further held that since the provisions of Section 39 of the Act were mandatory and since the landlord's full costs of the suit had not been deposited, the tenant was not entitled to the benefit of Section 39 of the Act. Consequently, the suit for ejectment of the tenant was decreed. A revision was filed and the view taken by the trial Court was affirmed and the revision was dismissed. Against this decision a civil revision was filed u/s 115 CPC in this Court. On the 18th July, 1979 it was held that the said revision was not maintainable. Thereafter, the present writ petition was filed. 4. Learned Counsel for the Petitioner argued that in the present case the provisions of Section 39 of the Act were applicable and the deposit made by the tenant covered all items and only a small item viz. Counsel's fee had not been deposited at the time when a sum of Rs. 500.51 was deposited in 1972. Subsequently, in 1975 a further amount of Rs. 32.50 was deposited as Counsel's fee. Counsel's fee had not been deposited at the time when a sum of Rs. 500.51 was deposited in 1972. Subsequently, in 1975 a further amount of Rs. 32.50 was deposited as Counsel's fee. Learned Counsel argued that the amount of Counsel's fee could not be determined, as the Plaintiff had neither filed fee certificate nor had revealed as to how much fee had to be paid. As soon as the legal position was ascertained the amount of Rs. 32.50 was deposited. It was a bonafide mistake and in any event the amount was a trivial one. Learned Counsel cited a decision of a learned Single Judge in case of D.C. Gupta v. K.N. Seth 1976 ALJ 124 , where a deficiency of Rs. 10 was condoned. Learned Counsel further in support of his contention referred to paragraph 20 of a Division Bench decision in the case of Dr. Amar Nath Agarwal Vs. Ist Additional District and Sessions Judge and Others, (1982) AWC 786 to show that the principle enunciated by the learned single Judge in the case of D.C. Gupta v. K.N. Seth (supra) had been affirmed by the Division Bench. Learned Counsel argued that when the amount was deposited initially or subsequently in 1975 no objection was raised by the Plaintiff-landlords to any shortfall in the amount or to any impediment in the making of such deposit. 5. I have heard the learned Counsel for the Respondent who has heavily relied on the Division Bench decision in the case of Amar Nath Agarwal v. 1st Addl. District judge (supra). 6. There is no dispute now that Section 39 of the Act is mandatory in nature. That provision confers right upon a tenant to save his tenancy under certain circumstances. The conditions are that (1) he has to within one month from the date of knowledge of the pendency of the suit deposit in the Court where the suit is pending the entire amount of rent for use and occupation (2) together with interest thereon at the rate of nine per cent per annum and (3) landlord's full costs of the suit. Where all these conditions are fulfilled, the provisions of Section 39 of the Act would come into play and the tenant would be saved from eviction. In the present case, the dispute relates to the third clause viz. the landlords full costs of the suit. Where all these conditions are fulfilled, the provisions of Section 39 of the Act would come into play and the tenant would be saved from eviction. In the present case, the dispute relates to the third clause viz. the landlords full costs of the suit. The Petitioner admittedly had not deposited any amount in respect of the landlord's full costs of the suit when he made initial deposit in 1972. Effort was made by him to deposit a sum of Rs. 32.50 as Counsel's fee on the 1st May, 1975 which was allowed to be deposited subject to legal pleas. 7. The contention that the tenant had no means of knowing as to what was the amount of the Counsel's fee, for no fee certificate had been submitted nor could it be ascertained as to what amount had been paid to the Counsel for the Plaintiffs is wholly irrelevant. In a Division Bench decision in the case of K.D. Ram Nath and Co. v. Girdhari Lal 1975 AWC 139, the term 'full costs has been explained in the following words: The expression 'full costs of the suit' in respect of a pending suit will represent the amount of Court fee paid on the plaint and on other documents and other taxable expenses incurred by the landlord by the date of deposit together with such amount of the Advocate's fee and the fee of his clerk as is taxable on the contested scale whether any certificate of fee has or has not been filed by the date of deposit. This decision therefore makes it clear that whether or not any fee certificate has been filed, full amount of Counsel's fee and his clerk which is liable to be paid on a contested scale has to be deposited. The plea therefore that the fee certificate bad not been filed by the Plaintiffs' Counsel or that the amount that had been paid by the Plaintiffs was not known is of no consequence. 8. The question of bonafides was also raised. The contention was that a sum of Rs. 500 and odd was deposited in 1972 and a sum of Rs 32.50 had been deposited as soon as it was realised that such an amount was also required to be deposited. It was argued that there was no lack of bona fide. 8. The question of bonafides was also raised. The contention was that a sum of Rs. 500 and odd was deposited in 1972 and a sum of Rs 32.50 had been deposited as soon as it was realised that such an amount was also required to be deposited. It was argued that there was no lack of bona fide. The question of bona fides will arise if there is substantial compliance with the requirement of law. Section 39 of the Act being mandatory in nature, the question of substantial compliance does not enter in the consideration at all. The Division Bench decision in the case of Amar Nath Agarwal v. 1st Addl. District Judge (supra) very clearly rejected the argument of substantial compliance. Referring to the case of D.C. Gupta v. K.N. Seth (supra) the Division Bench held: But, we are unable to subscribe to the opinion expressed by him in the aforesaid case that where a tenant has made the deposit in substantial compliance with Section 39, he will become entitled to get its benefit. We have found above that the question of substantial compliance is completely ruled out, that no tenant can get the benefit of Section 39 on that basis. The question of bona fides therefore is not such which will make any difference. 9. In the Single Judge decision in the case of D.C. Gupta v. K.N. Seth (supra) as well as in the aforementioned Division Bench decision in the case of Amar Nath Agarwal v. 1st Addl. District Judge, their Lordships explained the applicability of the principle "de minimis non curat lex" (the law does not concern itself about trifles). In Broom's Legal Maxims, Tenth Edition, page 88 the aforesaid principle has been amply explained and the same has been quoted with approval in the aforementioned Division Bench decision. Trifling matters are not to be taken into account is the underlying principle of the above maxim. The Division Bench observed, "It is only in a case of very small and trifling matter that the principle of de minimis can be brought into aid." 10. In the present case, the amount by which there was a shortfall is Rs. 32.50. Learned Counsel said it was a trifling amount and ought to be ignored. Where there is a deposit of Rs. 500/- and there is a shortage of Rs. In the present case, the amount by which there was a shortfall is Rs. 32.50. Learned Counsel said it was a trifling amount and ought to be ignored. Where there is a deposit of Rs. 500/- and there is a shortage of Rs. 32.50 it works out approximately to 6.2 per cent. In the case before the Division Bench Amar Nath Agarwal v. 1st Addl. District Judge the tenant was required to deposit a sum of Rs. 1944/- and there was a deficiency of Rs. 104/- i.e. 5.4 per cent. The Division Bench held that this was not a small sum which could qualify the requirement of getting the benefit of rule of de minimis. Where a tenant fails to comply with any of the requirements of Section 39 of the Act, it cannot be termed to be a trifling matter. Admittedly, the Counsel's fee was not deposited. There was thus non-compliance with the requirement of Section 39 of the Act. The amount could also not be termed to be trivial. Consequently, the rule of de minimis cannot be invoked. Sometimes such orders cause hardship but hardship alone does not persuade Courts to interpret law in a different manner. When statute is mandatory in its provision, it requires complete compliance. Where there is failure to comply with the mandatory requirement of law, a party cannot get any benefit on the ground of hardship. 11. For the reasons indicated above, I see no reason to interfere with the orders passed by the Courts below nor do I find any manifest error of law in the impugned orders. Consequently, the writ petition fails and is dismissed. However, parties are directed to bear their own costs.