Banarsi Lal v. Sagiran Begnm — 1983 DIGILAW 343 (ALL)

JUDGMENT N.N. Mithal, J. - This second appeal by the tenant arises out of suit for ejectment filed in April, 1969 on the ground that the construction in question was raised some time in 1956-57 and, as such, the earlier Act, U.P. Act No. 3 of 1974 was not applicable in respect thereof. The suit was decreed on 19-8-1971 and while the appeal was pending before the Civil Judge, Bijnor, U.P. Act No. 13 of 1972 was enforced with effect from 15-7-1972. It is alleged that taking advantage of the provisions of Section 39 read with Section 40 of the new Act, the entire amount payable was deposited in Court of appeal on 19-7-1972 and thus the Defendant-Appellant was absolved from his liability for eviction from the disputed premises. It would be significant to note that under the trial Court decree costs were made easy, and no amount of cost was awarded in favour of the Plaintiff Respondent. 2. The lower appellate Court confirmed the findings of the trial Court as regards the year of construction and on the cross-objection filed by the Plaintiff Respondent reversed the findings of the trial Court which had made the cost easy in the suit. It was directed that the Plaintiff would be entitled to her costs from the Defendant-Appellant. 3. Shri V.K. Gupta who has argued this appeal with great tenacity has urged that the Defendant had complied with the requirements of Sections 39 and 40 of the new Act and, as such, no decree for eviction could be passed. It appears from the judgment of the lower appellate Court that by means of an application 7-C, permission was sought by the Defendant to deposit cost of the appeal and rent for the months of August and September, 1972 which was allowed to be done at his own risk. Subsequently, amendment was also sought in the written statement for introducing the plea for getting the benefit of Section 39 read with Section 40 of U.P. Act 13 of 1972. He also made an application for permission to deposit costs of the trial Court which too was allowed to be deposited but at his own risk. The rent which fell due thereafter was also deposited from time to time. He also made an application for permission to deposit costs of the trial Court which too was allowed to be deposited but at his own risk. The rent which fell due thereafter was also deposited from time to time. The Plaintiff, by means of an application 29-A, challenged the right of the Defendant-Appellant for getting the benefit of the aforesaid provisions and it was contended that compliance of the provisions of Sections 39 and 40 had not been made. The Defendant then moved an application along with an affidavit seeking condonation of delay u/s 5 of the Limitation Act. These applications were rejected and the Court came to the conclusion that the Defendant had not complied with the provisions. 4. The undisputed position of the case appears to be that rent upto 31st of July, 1972 had already been deposited by the Defendant Appellant in the Court below on various dates, the last payment having been made on 19-7-1972. Subsequently on 7-8-1972, Rs. 118/- on account of rent for August, 1972 and Rs. 42/- by way of cost of appeal had been deposited on that date. One of the points urged before the Court below was that since the Plaintiff had also filed a cross-objection, its cost had also to be included in the deposit. This contention was repelled and I think rightly. The provisions of Section 39 and Section 40 of U.P. Act 13 of 1972 do not make any reference that the cost of the cross-objection or cross-appeal are also required to be deposited in order to get benefit under these Sections. Mainly the dispute raised in the Court below was that the Defendant had not deposited full costs of the appeal and had further failed to deposit the cost of the suit. This plea of the Plaintiff was accepted by the Court below but is being challenged before me in Second Appeal. 5. Sri. V.K. Gupta, learned Counsel for the Appellant, has mainly placed reliance on a Division Bench decision of this Court in R.D. Ram Nath & Co. v. Girdhari Lal 1975 AWC 139. Reference is particularly made to paragraph 25 where the three questions referred by the learned Single Judge have been answered by the Division Bench. 5. Sri. V.K. Gupta, learned Counsel for the Appellant, has mainly placed reliance on a Division Bench decision of this Court in R.D. Ram Nath & Co. v. Girdhari Lal 1975 AWC 139. Reference is particularly made to paragraph 25 where the three questions referred by the learned Single Judge have been answered by the Division Bench. The third question with which we are here concerned was as under: What amount would represent the 'full cost of the suit' in respect of a pending suit and in respect of a pending appeal or revision? This question was answered by the Bench as follows: This 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. In case of a first appeal or revision filed against a decree or order of the trial Court it will represent the costs awarded to the landlord in the decree or order together with the amount paid as Court fee on the memorandum of appeal or revision and other documents and other taxable expenses incurred in the first appellate or revisional Court including the Advocate's fee and the fee of his clerk which are to be computed in the manner stated above. 6. The main emphasis of the learned Counsel is on the words used in second para of the above quotation where the Bench had said "the costs awarded to the landlord". Since in the present case, the trial Court did not award any cost in favour of the Plaintiff, it is submitted that it was not obligatory on the Defendant to have deposited any amount by way of cost. This argument, however, ignors one aspect of the matter that an appeal is a continuation of a suit and the question whether cost of the suit would be payable to the landlord or not was still subject matter of the cross objection that had been filed by the Plaintiff-Respondent. This argument, however, ignors one aspect of the matter that an appeal is a continuation of a suit and the question whether cost of the suit would be payable to the landlord or not was still subject matter of the cross objection that had been filed by the Plaintiff-Respondent. If that cross objection were to stand allowed, ultimately the result would be that even the trial Court's cost will become payable to the Plaintiff. It will, therefore, create an anamolous position that while without paying the cost of the trial Court, the Defendant will obtain the benefit of not being evicted from the premises, yet on the allowing of the cross objection, he would be liable to pay the amount of costs to the Plaintiff. In fact what appears to me is that the words the costs awarded to the landlord' has been mentioned by the Bench rather loosely and all that it meant was that cost incurred by the landlord or, to put it in other words, the costs which are taxable in favour of the landlord, whether or not the same have been actually awarded under the order of the trial Court had to be deposited. 7. One cannot forget that under the old Act, a landlord was entitled to file a suit for the eviction of the tenant without seeking any permission of the District Magistrate nor was the suit liable to be restricted only to the grounds mentioned in Section 3 of the said Act where the building in question had been constructed on or after 1-1-1951. The benefit was, however, given on the enforcement of U.P. Act 13 of 1972, to the tenants in such pending cases and this benefit could be availed only after a strict compliance of Sections 39 and 40 had been made. It is a general principle of law that whenever any law grants any benefit to a party, those conditions ought to be strictly complied with by that party who seeks such benefit before the same can be availed of. In normal circumstances, if the new Act had not been passed, the landlord's suit could not have failed merely on the ground that the tenant had deposited the money. Section 39 read with Section 40 makes it obligatory for the tenant to make certain deposits. In normal circumstances, if the new Act had not been passed, the landlord's suit could not have failed merely on the ground that the tenant had deposited the money. Section 39 read with Section 40 makes it obligatory for the tenant to make certain deposits. Section 39 of the Act, shorn of the irrelevant portion, reads as under: In any suit for eviction of a tenant from any building to which the old Act did not apply, pending on the date of commencement of this Act, where the tenant within one month from such date of commencement...deposits in the Court before which the suit is pending, the entire amount of rent and damages for use and occupation...together with interest thereon at the rate of nine percent per annum and the landlord's full cost of the suit, no decree for eviction shall be passed except on any of the grounds mentioned in...and the the parties shall be entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary. Section 40 of the Act lays down as under: Where an appeal or revision arising out of a suit for eviction of a tenant from any building to which the old Act did not apply is pending on the date of commencement of this Act, it shall be disposed of in accordance with the provisions of Section 39, which shall mutatis mutandis apply. 8. The two provisions show that while Section 39 is applicable in respect of the suits, Section 40 would apply where the appeal or revision in such suits is pending. However, the provisions of Section 39 shall apply in that case also mutatis mutandis. In the 'Words and Phrases' Volume 27-A, this expression 'mutatis mutandis' has been defined as "with necessary changes in detail to conform to a single vital change." Similarly, in Black's Dictionary, IVth revised Edition at page 1172, this expression has been defined to mean, "with necessary changes in points of detail, meaning that matter and things are generally the same, but to be altered when necessary, as to names, offices and the like."This particular expression came up for consideration in Debi Mata Vs. State of West Bengal and Others, AIR 1972 Cal 497 where it was held as under: The phrase is often used in legislation in applying or extending legislative provision to same or similar, circumstances or to same or similar subjects. It is nothing but a rule of adaptation. 9. 'Mutatis mutandis' in the context of Sections 39 and 40, would, therefore, mean that similar provisions as are to be found in Section 39 would also apply in a case of an appeal or a revision arising out of a suit of eviction of the same nature as contemplated u/s 39 of the Act. In other respects, provisions of Section 39 must prevail. From this it follows that even though cost may or may not have been awarded by the Court below, if the tenant wants to seek the benefit against his eviction in view of Section 39 of the Act, he can so do only after complying with the conditions as are laid down in that Section. Section 39 does not lay down that if costs have not been awarded by the Court, the same are not to be paid. According to the General Rules (Civil), in every case, a decree sheet has to be prepared in accordance with the decision of the Court showing the cost which a party may be entitled in the litigation or taxed therein in accordance with the Rules laid down. If the Court is of the view that in the circumstances of a particular case, the Plaintiff-Respondent should be denied the right to recover the cost from the other party, it does not mean that no costs have been incurred by the landlord. The words 'landlord's full costs of the suit' is not the same thing as the ' costs awarded to the Plaintiff in a suit', and it appears to me that the word ' landlord ' has been used here purposely in order to distinguish it from the Plaintiff of the suit. As a Plaintiff a person may or may not be entitled to recover any costs under the decision of the Court, yet as a landlord he may have incurred certain costs in fighting out the suit. Therefore, when in the case of R.D. Ram Nath and Co. As a Plaintiff a person may or may not be entitled to recover any costs under the decision of the Court, yet as a landlord he may have incurred certain costs in fighting out the suit. Therefore, when in the case of R.D. Ram Nath and Co. (supra), the Division Bench had used the expression 'cost awarded', what the Court really meant was the " taxable cost incurred by the landlord". In that case, since the cost had already been awarded to the Plaintiff by the trial Court, this question was not before it in this light and, therefore, this distinction could not be kept in mind by the Bench. I must, however, say that the entire reasoning on which decision rested in that suit does go to show that whatever amount is supposed to be deposited by the tenant under the head 'landlord's full cost of the suit' in Section 39 really meant all those taxable costs which were capable of being ascertained on the date of the deposit, with reference to the material on the record and in pursuance of the Rules framed by the Court in that behalf. In paragraph 22 of the said decision, this reasoning has been elaborated and it leaves no room for doubt that only so much of the amount as has been actually awarded by the Court below need be deposited by the tenant in order to get the benefit u/s 40 does not appear to be correct. The tenant must in order to get the benefit of these provisions, deposit all ascertainable costs liable to be taxed in favour of the landlord, whether or not such had been awarded under the decree against which an appeal or revision was actually pending on 15-7-72. 10. As already observed earlier in this case, there was another factor which is very relevant. It is not disputed that on the relevant date, a cross-objection filed by the Plaintiff was still pending. The order as to payment of cost of the trial Court was still subject of decision in appeal which fact could not be completely ignored. As happened in this case, the decision of the trial Court denying costs of suit to the Plaintiff has been reversed on appeal after due consideration of all the material before the lower appellate Court. The order as to payment of cost of the trial Court was still subject of decision in appeal which fact could not be completely ignored. As happened in this case, the decision of the trial Court denying costs of suit to the Plaintiff has been reversed on appeal after due consideration of all the material before the lower appellate Court. The Defendant must, therefore, be deemed to be liable for such costs under the decree and ought to have been deposited by the Appellant as contemplated by Section 39 of the Act. 11. A very feeble effort was also made by the Appellant to urge that the Court below has erred in rejecting the application u/s 5 of the Limitation Act and the same ought to have been allowed. It is submitted that in case the said application had been allowed, the compliance of Sections 39 and 40 of the Act would have been complete and the Defendant Appellant could seek the benefit against his eviction. It may be noted that Section 5 of the Limitation Act applies only to an appeal or an application for which any period of limitation has been prescribed. When the tenant is given benefit under Sections 39 or 40 of the Act, he is not required to either file an appeal or to make an application in that behalf. All that is necessary is that he ought to make the necessary deposit within the time prescribed and, if necessary, he can seek an amendment in his pleadings by moving an application. The second part regarding moving of an application is itself dependent upon his first depositing the requisite amount under the said provisions. There is no requirement of making an application in this respect. A mere deposit of the amount would suffice under the law. In such circumstances, the question of condoning any delay u/s 5 of the Limitation Act, therefore, can not arise. Reference in this respect may be made to Sri. Chandra. Gupta v. Madan La 1973 AWR 472 and Vijai Bahadur v. Mahabir Prasad 1972 AWR 747 . I find no reason to differ from the opinion expressed in the aforesaid decisions and I find that the contention of the Appellant in this respect has no merit. 12. Reference in this respect may be made to Sri. Chandra. Gupta v. Madan La 1973 AWR 472 and Vijai Bahadur v. Mahabir Prasad 1972 AWR 747 . I find no reason to differ from the opinion expressed in the aforesaid decisions and I find that the contention of the Appellant in this respect has no merit. 12. After giving my anxious consideration to all the aspects of the case and the legal position involved therein, I am of the view that the Defendant had failed to comply with the requirements of Section 39 read with Section 40 of the Act and was, as such, not entitled to seek benefit under the said provision. The decision of the Court below, therefore, does not suffer from any infirmity and must, therefore, be upheld. 13. The result is that the appeal fails and is accordingly dismissed with costs.