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1984 DIGILAW 231 (ALL)

Zakaria v. 2nd Addl. District Judge, Saharanpur

1984-03-14

R.B.LAL

body1984
JUDGMENT 1. By this writ petition under Article 226 of the Constitution, the tenantpetitioner prays for quashing the judgment of the revisional court dated 8.8.80 and judgment of the trial court dated 5.1.79. 2. Plaintiffrespondent No. 3, Yasin, brought suit against the present petitioner (hereinafter referred to as the 'tenant') with allegations that the defendant was his tenant, of shop situated at Deoband, at a monthly rent of Rs. 40. The shop was constructed in the year 197071 and was, thus, outside the purview of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (briefly the 'Act'). The tenant was in arrears of rent from 7.4.77. A notice of demand and termination of tenancy was given to the tenant on 28.9.77 and it was served on him on 7.10.77. The owner prayed for eviction of the tenant from the shop and for recovery of arrears of rent and damages for use and occupation. The tenant contested the suit and contended that the shop was an old construction. The notice was illegal one, and the landlord had refused to accept rent. The trial court held that the 'Act' was not applicable to the shop in dispute and the notice was a valid notice. It, therefore, decreed the suit for eviction and arrears. 3. The tenant filed revision in the court of District Judge, Saharanpur, which was disposed of by II Additional District and Sessions Judge. During the pendency of the revision, the tenant sought an amendment which was allowed and he raised the plea that the 'Act' had become applicable to the shop and he was entitled to the benefit of the provisions of section 39 of the 'Act'. The learned counsel for the landlordplaintiff made a statement on the Hindi ordersheet that in view of the latest Supreme Court decision, the Act' was applicable to the shop in dispute at the time of the filing of the suit. The tenant claimed benefit of the provisions of section 20 (4) of the 'Act' and he contended that he had deposited the arrears of rent and other amounts on 6.4.78 which was the date of first hearing in the suit. The revisional court held that the deposit was not made on the date of first hearing i.e. 6.4.78 and there was no satisfactory explanation for not making the deposit on that date. The revisional court held that the deposit was not made on the date of first hearing i.e. 6.4.78 and there was no satisfactory explanation for not making the deposit on that date. The said court did not allow benefit of section 20 (4) of the 'Act', to the tenant and did not relieve' him of liability for eviction. In the result, the revision was dismissed. 4. Now the tenant has filed this writ petition and challenged the order of the courts below. 5. I have, heard the learned counsel for the parties at some length. 6. The learned counsel for the plaintiffrespondent No. 3 has submitted that the learned counsel for the landlord had not made an admission of any fact in connection with the date.of completion of construction of the shop in dispute; he had made a concession about the applicability of the 'Act' in view of the Supreme Court decision, which appeared to be the latest view of the Supreme Court, at the time. Since the view regarding the applicability of the 'Act' to buildings which were constructed before the coming into force of the 'Act' but to which U.P. Act No. 3 of 1947 was not applicable, has undergone a change by subsequent pronouncements of the Supreme Court and, therefore, it is essential to determine the date on which the construction of the shop in dispute is to be taken as completed for the purposes of the 'Act'. Both the Courts below had not recorded a finding on his important point. This submission of the learned counsel appears to be well founded. From the revisional Court's judgment it is not clear as to which judgment of the Supreme Court was in the mind of the learned counsel for the plaintiff when he had made concession before that court about the date of applicability of the 'Act' to the shop in question. The other question whether the tenant is entitled to the benefit of section 39 or of section 20 (4) of the 'Act' and whether he properly complied with the provision which is applicable, would depend on a finding on the point as to when the construction of the shop is to be taken as completed. For these purposes the case must go back tothe court below. 7. For these purposes the case must go back tothe court below. 7. The learned counsel for the tenantpetitioner has challenged the view of the revisional court that the deposit made by tender after 6.4.78 could not be taken to have been made on 6.4.78 which was the date of first hearing in the suit. The learned counsel has urged that the tender was filed in court on 6.4.78 and it was given back to the tenant after being passed by the court on 12.4.78 and the deposit was made on 13.4.78 itself. The delay in making the deposit was not on account of any act of the tenant but on account of late passing of the tender by the court. In these circumstances the deposit should have been taken to have been made on the date of presentation of the tender before the court i.e. on 6478. In support of this contention, the learned counsel has placed reliance on a decision of this court in Shamsuddin v. Babu Ram 1980 Ay 442. The facts are not in dispute. The date of first hearing for purposes of section 20 (4) of the 'Act' was 6.4.78. The tender for deposit was produced before the court, the same day, by the tenant, but it was given back to him after passing on 12.4.78 and the deposit was actually made on 13.4.78. Thus, there was no delay on account of the act of the tenant. The question whether a deposit made in treasury by tender relates back to the date of presentation of the tender (challan) came up for consideration before the Supreme Court. In Ved Prakash v. Vishwa Mohan; 1982 ALJ, 202, their lordships observed thus: A rather trifling question has been mooted before us that the date of deposit cannot be taken to be the date on which the challan was passed by the court but only the actual date on which the money was put into the treasury. Here again, we cannot quibble over expressions but must be guided by the practice prevailing in the courts in the States. Two decisions to which our attention was so drawn were AIR 1977 NOC 253 Bankey Behari v. Gopal Das, and 1977 (U.P.) RCC 221Daya Ram v. Virender Kumar Goyal. Here again, we cannot quibble over expressions but must be guided by the practice prevailing in the courts in the States. Two decisions to which our attention was so drawn were AIR 1977 NOC 253 Bankey Behari v. Gopal Das, and 1977 (U.P.) RCC 221Daya Ram v. Virender Kumar Goyal. They lay down the law that when money is tendered before the court, challan is passed by the ministerial officer and thereupon the money is deposited in the treasury with the challan, such deposit relates back to the date on which the tender was made or the challan presented. Taking this view as correct, and we are inclined to that view, the appellant has deposited the arrears of rent well within time. The principle that a deposit by tender before the court (sic), has thus, received the approval of the highest court of the land and is applicable to the facts of the instant case. In.these circumstances, the deposit though made on 13.4.78 should be taken to have been made on 6.4.78. The contrary view taken by the revisional court was legally erroneous. 8. In view of what has been discussed in the preceding paragraphs, the case must go back to the revisional court, for a fresh decision of the revision, according to law after giving opportunity of hearing to the parties. Here it may be made clear that the' discussion in connection with the date from which the deposit made by the tenant will hold good, would not be taken to mean that the tenant is entitled to the benefit of section 20 (4) of the 'Act'. The revisional court will decide the various questions which may arise for decision in this case, including the one indicated earlier. 9. The writ petition is allowed. The judgment of the revisional court dated 8.8.80 is quashed and the case is sent back to the revisional court for deciding the revision afresh according to law, bearing in mind the observations contained in the body of this judgment. In the costs of this writ petition (sic). (Petition allowed)