Sheorani v. 1st Addl. District Judge Shahjahanpur — 1984 DIGILAW 498 (ALL)

JUDGMENT O.P. Mehrotra, J. - By this writ petition under Article 226 of the Constitution the petitioner, who is landlady of a shop situated at Poyan district Shahjahanpur, has prayed for quashing the order dated 3.9.1980 passed by the First Addl. District Judge, Shahjahanpur dismissing the petitioner's suit for ejectment of opposite party No. 3 from the premises in question. 2. The petitioner filed Suit No. 19 of 1970 for ejectment of Ram Avtar opposite party No. 3 on the ground that the shop in question was constructed after 1951 i.e. in the year 1955 and as such the provisions of U.P. Act 3 of 1947 did not apply and that she did not want to keep him as a tenant and was terminated his tenancy by means of a notice. The suit was contested by opposite party No. 3, who pleaded that the shop in question was constructed in 1947 and that the provisions of U.P. Act No. III of 1947 were applicable. During the pendency of the suit U.P. Act No. XIII of 1972 came into force. The tenant filed an application on 14.5.1972. for permission to deposit the arrears of rent and costs. The amount was, however, not deposited and the tender was said to have been misplaced by the office. The tenant submitted another tender and sought permission of the court to deposit the arrears of rent and costs. The court permitted the defendant to do so. Thereafter the deposit was made and the Judge Small Causes having found that the tenant had deposited the amount required by Section 30 of U.P. Act No. XIII of 1972 dismissed the suit. 3. Aggrieved by the judgment of Judge Small Cause Court the plaintiff went up in revision before the District Judge, who by his order dated 13.5.1974 held that the tenant was not entitled to claim advantage under section 39 of the new Act as he did not deposit the entire amount of rent, interest and costs of the suit during the period granted under that section. Accordingly, he allowed the revision and decreed the plaintiff's suit for ejectment. 4. Thereafter the tenant went up in revision before the High Court. Hon'ble Mr. Accordingly, he allowed the revision and decreed the plaintiff's suit for ejectment. 4. Thereafter the tenant went up in revision before the High Court. Hon'ble Mr. Justice K.C. Agrawal agreed with the finding of the District Judge that as the entire amount required by Section 39 of the New Act had not been deposited by the tenant, he was not entitled to the benefit of Section 39. However, as the learned lower courts had not gone into the question as to whether the shop in question had been constructed before or after 1951 so as to ascertain as to whether Act No. III of 47 was applicable, he remanded the case for being decided afresh and observed that the question that the tenant was not entitled to the benefit of Section 39 need not be gone into again. 5. In the meanwhile the plaintiff by an amendment of the plaint raised a fresh plea that the tenant had sublet the premises to his brother Ram Niwas, opposite party No. 4. The Judge Small Cause Court repelled this plea of the plaintiff. It was held that the shop in question had been constructed in the year 1955 and as this construction had been made after 1981, the provisions of Act 3 of 1947 were not applicable. Accordingly, he decreed the suit. 6. The tenant then filed a revision which came up before the 1st Addl. District Judge, who agreed with the finding of the lower court that the premises had been constructed after 1955 and as such the provisions of Act 3 of 1947 were not applicable. He was, however, of the opinion that the pro visions of Act 13 of 1972 were applicable and the landlord could seek eviction of the tenant only if he was able to establish one of the grounds contemplated under clauses (b) to (g) of sub-section (2) of Section 20 and as this was not made out, the defendant was not liable to eviction despite the non-compliance of the provisions of Section 39. He, therefore, allowed the revision and dismissed the suit. 7. Being aggrieved the landlady has filed the present writ petition. He, therefore, allowed the revision and dismissed the suit. 7. Being aggrieved the landlady has filed the present writ petition. It was contended on behalf of the petitioner that the tenant having failed to deposit the amount as contemplated by Section 39 during the prescribed period, he was not entitled to contend that the suit could not be decreed unless one of the grounds under clauses (b) to (g) of section 20 (2) of Act 13 of 1972 existed. According to him as the premises in question were constructed between 1951 and 15.7.1972 and as the provisions of Act 3 of 1947 were not applicable, the tenant was not entitled to raise the plea that he could not be evicted unless one of the grounds mentioned in clauses (b) to (g) of Section 20 (2) were established, and as the tenant had failed to comply with the provisions of Section 39 of the New Act, there was no alternative for the court below but to decree the plaintiff's suit. 8. Having heard learned counsel for the parties, I find considerable force in the above contention. The language of Section 20 of Act 13 of 1972 clearly indicated that it was prospective in nature and did not apply to pending suits which were to be brought to their logical conclusion in accordance with the provisions of law as it existed on the date of the commencement of Act 13 of 1972. The only advantage given to the tenants was specified in Section 39 of the Act, but as the tenant in the present case failed to deposit the entire amount of rent, interest and costs within the time allowed he had no further defence in the case and he could not raise the plea that he cannot be evicted unless one of the grounds specified in clauses (b) to (g) of Sub-section (2) of Section 20 existed. 9. Sri Santosh Kumar, Advocate, appearing on behalf of the petitioner referred to the decision of this court in the case of Balram v. P.C. Agarwal A.L.R. 1980(4) Page 297. The facts of that case were similar to the facts of the case in hand. The building in that case also had been constructed in the year 1955 and it was found that the tenant did not deposit the amount contemplated by Section 39 within the period prescribed therefor. The facts of that case were similar to the facts of the case in hand. The building in that case also had been constructed in the year 1955 and it was found that the tenant did not deposit the amount contemplated by Section 39 within the period prescribed therefor. It was held that it was not open to the tenant to contend that a suit which otherwise had to he taken to its logical conclusion, should not be decreed unless one of the grounds mentioned in clauses (b) to (g) of Section 20 existed. 10. The learned counsel for the opposite-parties could not refer to the above contention and could not cite any law or ruling in which a contrary view might have been taken. This petition, therefore, deserves to succeed. 11. In the result, the petition succeeds and is allowed. The order passed by the First Addl. District Judge, on 3.9.1980 is hereby quashed and the order and decree dated 21.1.1980 gassed by Judge Small Cause Court (Munsif) Shanjahanpur is restored. The petitioner will get his costs from opposite party No. 3.