Prem Chand v. District Judge — 1985 DIGILAW 295 (ALL)

JUDGMENT : H.N. Seth, J. This is a tenants petition for relief under Article 226 of the Constitution. 2. Respondents 2 and 3 Rajendra Prasad and Sahmbhoo Naih Jaiswal filed a suit in the Court of Judge Small Causes, Ghazipur in the year 1980 for eviction of the Petitioners from a shop after serving upon them a notice u/s 106 of the Transfer of Property Act. The case of the Plaintiffs was that the said shop was constructed in the month of April, 1974 and it fell outside the purview of the U.P. Act No. 13 of 1972 (U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act--hereinafter referred to as the Act. The Defendants contested the suit on a number of grounds, one of such grounds being that the notice u/s 106 of the Transfer of Property Act v as invalid. 3. The trial court dismissed the suit by its judgment dated 26th February, 1983. Aggrieved, the Plaintiff Rajendra Prasad went up in revision before District Judge. However, before the revision application could be heard and disposed of, a period of ten years, since the construction of the shop, elapsed and the Defendant claimed that he became entitled to the protection of Section 39 of the Act. 4. The District Judge held that there was no defect in the notice to quit given by the Plaintiff u/s 106 of the Transfer of Property Act was quite valid and that the Defendants were not entitled to the protection of Section 39 of the Act, inasmuch as they did not deposit the requisite amount in his Court within one month of the date on which the Act became applicable to the premises in question. In the result he, vide judgment dated 15th September, 1984 allowed the revision application and decreed the Plaintiff's suit. Aggrieved, the Defendants have approached this Court for relief under Article 226 of the Constitution. 5. The only ground on which learned Counsel appearing for the Petitioners pressed the petition before me is that the District Judge had erred in denying to the Defendants, the protection of Section 39 of the Act. 6. Aggrieved, the Defendants have approached this Court for relief under Article 226 of the Constitution. 5. The only ground on which learned Counsel appearing for the Petitioners pressed the petition before me is that the District Judge had erred in denying to the Defendants, the protection of Section 39 of the Act. 6. Section 39 of the Act lays down that any suit for eviction of a tenant from any building to which the old Act did not apply, pending on the date of the commencement of the Act, if the tenant within one month from such date of the commencement or from the date of the knowledge of the pendency of the suit, whichever, be later, deposits in the court before which the suits pending, the entire amount of rent and damages for the use and occupation together with interest thereon at the rate of nine percent per annum and landlord's full costs of the suit, no decree for eviction shall be passed except on any of the grounds specilied in the proviso to Sub-section (1) or in Clauses (b) to (g) of Sub-section (2) of Section 20 of the Act. The case of the Petitioners before me Is that they were tenants in the premises in question on payment of rent at the rate of Rs. 85/- per month. From out of the rent claimed by the landlord they had already paid a sum of Rs. 3,000/- to him. According to them they had also deposited a sum of Rs. 1,000/- with the landlord at the commencement of the tenancy by way of security. A further sum of Rs. 2,040/- had been, during the pendency of the revision application, deposited by them in proceeding u/s 3 of U.P. Act No. 13 of 1972 in the court of Munsif, Ghazipur. The total amounts so paid and deposited by the Defendants thus came to Rs. 5,040/-. The rent that became due to the Plaintiff for the period upto 1st May, 1984, i.e. the first date on which the rent for the month of March, 1984 became due after the accommodation in question came under the purview of the Act, amounted to only Rs. 4,505/-. The entire arrears of rent for the period upto 1st May, 1984 thus stood paid up and the Defendant was entitled to claim the protection of Section 39 of the Act without making any further deposits. 4,505/-. The entire arrears of rent for the period upto 1st May, 1984 thus stood paid up and the Defendant was entitled to claim the protection of Section 39 of the Act without making any further deposits. 7. The revisional court found that a sum of Rs. 3,000/- had, in fact, been paid by the Defendant as advance towards rent. From out of the rent claimed by the Plaintiff, sum of Rs. 3,000/- thus stood paid up and that on the date on which the Act became applicable to the accommodation in question, the Defendant was, from out of the amount of arrears of rent claimed by the Plaintiff not in arrears in respect of the sum of Rs. 3,000/-. But even so after accounting for the said sum of Rs. 3,000/- the Defendant was in arrears of some rent. In order to claim the protection of Section 39 of U.P. Act No. 13 of 1972 the Defendant had to, within one month of the date on which the Act became applicable to the premises in question, deposit said arrears in the Court before which the revision application was pending which he did not do. The revisional court did not accept the defence plea that the Defendants were also entitled to the adjustment of Rs. 2,040/- deported by Item during the period 30-3-1984 and 25-9-1984 in proceeding u/s 30 of U.P. Act No. 13 of 1972. It observed that as the Munsif did not accept those deposits they could not be taken into account while considering the question with regard to rent to which the Defendants were in arrears in respect of the rent payable by them. 8. So far as the deposit of Rs. 2,040/- made by the Petitioners in proceeding u/s 30 of the Act is concerned, learned Counsel for the Petitioners relied upon a copy of the order of the Munsif, Annexure 1 to the supplementary affidavit filed on 2-1-1985 permitting them to deposit the rent u/s 30 of the Act and contested their case that once the amount is so deposited, such deposit amounts to payment of rent to the landlord and the tenant cannot be deemed to be in arrears of rent to that extent. This order Annexure 1, however, indicates that the learned Munsif had permitted the Defendant-tenant to make the deposit at his own risk. 9. This order Annexure 1, however, indicates that the learned Munsif had permitted the Defendant-tenant to make the deposit at his own risk. 9. The revisional court has found that the premises in question was constructed some time in the end of April 1974. Accordingly, prior to that, the premises in question fell out side the purview of the Act and any deposit purported to have been made by the tenant u/s 30 of the Act before April 1984 would be without jurisdiction. Learned Counsel for the Petitioners admitted that from out of sum of Rs. 2,040/- a sum of Rs. 1445/-had been deposited by him prior to 1-4-1984. That much amount, therefore, was deposited at a time when Section 30 of the Act was not applicable to the accommodation in question and as such it cannot be treated either as deposit or payment of rent made u/s 30 of the Act. It certainly was not, as contemplated by Section 39 of the Act, a deposit made in the court before which the suit for eviction was pending Once this amount of Rs. 1,445/- is ignored it becomes clear that the entire rent that was due from the tenant upto the date on which the Act became applicable to the accommodation in question did not stand deposit within one month of the relevant date. 10. I am unable to accept the suggestion made by the learned Counsel for the Petitioners that once the Petitioners had deposited any amount to Plaintiff's credit at any place it had to be adjusted against the arrears of rent and the provisions of Section 39 of the Act should be taken to have been complied with in this case. It is only such deposits as legally amount to payment of rent to the landlord or which have been made in the court before which the proceedings for eviction are pending that can be taken into account for this purpose. 11. Besides this there is no material on the record to indicate that the Petitioners had deposited the costs incurred by the landlord in the suit as required by Section 39 of the Act. In this regard the submission of the Petitioners is that if the amount of Rs. 3,000/- advanced by the Petitioners to the landlord as advance rent plus Rs. 2,040/- deposited by him in proceeding u/s 30 of the Act as also Rs. In this regard the submission of the Petitioners is that if the amount of Rs. 3,000/- advanced by the Petitioners to the landlord as advance rent plus Rs. 2,040/- deposited by him in proceeding u/s 30 of the Act as also Rs. 1.000/- paid by him as security at the time of the agreement of tenancy are taken into account it will be found that much more than the rent due plus the costs of the proceeding etc stood paid up. As already explained the amount purported to have been deposited by the Petitioners in proceeding initiated by him u/s 30 of the Act cannot in the circumstances of the case, be treated as payment to the landlord. Likewise, the security amount of Rs. 1,000/- deposited by them with the landlord at the commencement of tenancy neither amounts to payment of rent nor to payment-made towards the costs incurred by the landlord. This amount was under the agreement to be accounted for or returned to the tenant on determination of their tenancy. The tenant cannot claim that he should not be ejected and at the same time the amount of Rs. 1,000/- should also be adjusted towards costs or rent. 12. I am accordingly of opinion that as the Petitioners have failed to comply the mandatory provisions of Section 39 of the Act they are not entitled to its protection. As the only point raised by the learned Counsel for the Petitioner has been repelled by me, I do not find any merit in this petition which deserves to be dismissed. 13. Learned Counsel for the Petitioners has, after consultation with his client, who is present in court, stated that the Petitioners would deliver vacant possession of the shop in question to the landlord within one month from today's date. In view of this statement learned Counsel for the Respondents 2 and 3 has undertaken not to pursue the proceedings for the ejectment of the Petitioners for a period of one month. 14. Subject to aforesaid statements made by learned Counsel for the parties the petition fails and is dismissed with costs.