Sukhmal Chand Jain v. Suraj Bhan — 1985 DIGILAW 913 (ALL)

JUDGMENT S.D. Agarwal, J. - This is a revision under Section 25 of Small Cause Courts Act. No. 21 of 1976 was filed by the opposite party Suraj Bhan against the revisionist in the court of Judge Small Cause at Meerut of eviction of the revisionist from the accommodation in dispute and for recovery of arrears of rent and damages for use and occupation at the rate of Rs. 300/- per mensem from 15th October, 1975. The case of the plain tiff-opposite party is that the revisionist has been his tenant at the rate of Rs. 300/- per mensem. He demanded arrears of rent through a notice dated 23.3.1976 and also terminated his tenancy but in-spite of the notice neither the revisionist paid the arrears of rent nor vacated the accommodation and hence the necessity arose of filing the suit out of which the present revision arises. 2. The defence of the revisionist was that, in fact, the rate of rent was Rs. 100/- per mensem. He asserted, however, that the rent note was got executed at the rate of Rs. 300/- per mensem so that the plaintiff-opposite party could get the shop vacated from the revisionist at any time under the pressure of payment of higher rent. During the pendency of the suit, since the revisionist did not comply with the provisions of Order XV Rule 5 Code of Civil Procedure and he did not deposit the rent his defence was struck off on 1.12.1976. Against the order dated 1.12.1976 striking of the defence, revision was filed in this Court. This revision was allowed by this court on 10th April, 1979 setting aside the order striking of the defence and further direction was issued that the suit be disposed of in accordance with law. 3. After remand by this court, the matter was again examined by the trial court and ultimately the suit was decreed on 10th December, 1984. It is this order dated 10th December, 1984 which has been impugned in the present revision. 4. I have heard the learned counsel for the parties. 5. Learned counsel for the petitioner has contended that- (1) the finding recorded by the court below that the rate of rent is Rs. It is this order dated 10th December, 1984 which has been impugned in the present revision. 4. I have heard the learned counsel for the parties. 5. Learned counsel for the petitioner has contended that- (1) the finding recorded by the court below that the rate of rent is Rs. 300/- per mensem is manifestly erroneous; (2) the revisionist is entitled to the benefit of Section 20(4) of U.P. Act 13 of 1972 and the finding to the contrary is erroneous; (3) the explanation to Section 20(4) added by U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, (Amendment Act, 1976), U.P. Act 28 of 1976 is not applicable to the case of the revisionist. 6. In so far as the first contention of the learned counsel is concerned, the court below examined the entire documentary evidence on record and thereafter came to the conclusion that the rate of rent was Rs. 300/- per mensem. The case set up by the revisionist that the rate of rent was Rs. 100/- per mensem only was not accepted by the court below. From the reasons given by the court below, it is clear that there was documentary evidence to establish that the rate of rent was Rs. 300/- per mensem. It cannot be said that the finding recorded by the court below in this regard is in any manner manifestly erroneous. In fact, it is based on appreciation of evidence on the record examining the evidence of both sides, the court below came to the conclusion that the rate of rent was Rs. 300/- per mensem. This clearly is a finding of fact based on appreciation of evidence. In the circumstances, the contention raised by the revisionist challenging the finding in regard to the rate of rent is, in my opinion, without substance. 7. So far as the second and third contentions of the learned counsel are concerned, I shall consider both these contentions together. 8. This clearly is a finding of fact based on appreciation of evidence. In the circumstances, the contention raised by the revisionist challenging the finding in regard to the rate of rent is, in my opinion, without substance. 7. So far as the second and third contentions of the learned counsel are concerned, I shall consider both these contentions together. 8. Section 20 sub-clause (4) of U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972, herein after referred to as the act, provides that in any suit for eviction on the ground mentioned in clause (a) of sub- section (2) if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in court the entire amount of rent and damages for use and occupation of the building due from him together with interest thereon at the rate of 9% per annum and the landlord's costs of the suit, the court may in lieu of passing a decree for eviction on the ground of default pass an order relieving the tenant against his liability for eviction on that ground Sub- section (4) of Section 20 of the Act is a beneficent provision giving the benefit to the tenant of being relieved of eviction on the ground of default, even though so far as the landlord is concerned, a ground of eviction is made out under clause (a) to sub-section (2). An Explanation was added to Section 20 sub-clause (4) of the Act defining as to what meaning could be given to the words 'first hearing of the suit'. By the U.P. Act 28 of 1976, hereinafter referred to as the Amendment Act, the following Explanation was added : "Explanation-For the purposes of this sub-section- (a) the expression 'first hearing' means the first date for any step or proceeding mentioned in the summons served on the defendant; (b) the expression 'cost of the suit' includes on half of the amount of the counsel's fee taxable for the contested suit." 9. This Amending Act received the assent of the President on July 1, 1976 and was published in the U.P. Gazette on 5th of July, 1976. 10. In the instant case, it is not disputed that the date of hearing fixed in the summons which was served on the defendant was 16th July 1976. This Amending Act received the assent of the President on July 1, 1976 and was published in the U.P. Gazette on 5th of July, 1976. 10. In the instant case, it is not disputed that the date of hearing fixed in the summons which was served on the defendant was 16th July 1976. On this date an application was moved by the counsel for the revisionist stating therein that the above mentioned date has been fixed as the date of hearing but since he has been engaged as a counsel for the first time on that date, he could not prepare the written statement on account of heavy work and hence he prayed that another date of hearing be fixed. The court accordingly allowed time till 20th August, 1976, for filing the written statement and fixed 28th August, 1976 for hearing of the case. On 20th August, 1976 written statement was filed but on 28th August, 1976 when the case was listed for hearing another application was moved for adjournment of the hearing on the ground that the witnesses whom the defendant had summoned had not come on account of their personal work and hence some other date be fixed. The court then fixed 22.9.1976 for the hearing. On 22.9.1976 as the presiding Officer was on leave, 1.12.1976 was fixed for hearing. Whether the counsel was ready to argue the case or not was not relevant at all for determining as to whether the revisionist was entitled to the benefit of Section 20(4) of the Act. In the suit summons had been served on the revisionist and the Explanation to Section 20 Sub-section(4) added by the Amending Act had already come into effect on 16th July, 1976 which was the date fixed for hearing of the case. Admittedly, on 16th July, 1976 the petitioner did not deposit the rent and damages as required by Section 20(4) of the Act. Since the revisionist did not deposit the amount on that date, he is not entitled to the benefit of Section 20(4) of the Act. 11. In Siaram v. District Judge, Kheri 1984 (1) ARC Page 410, a Full Bench of this court had an occasion to consider the effect of the Explanation added by the Amending Act. Since the revisionist did not deposit the amount on that date, he is not entitled to the benefit of Section 20(4) of the Act. 11. In Siaram v. District Judge, Kheri 1984 (1) ARC Page 410, a Full Bench of this court had an occasion to consider the effect of the Explanation added by the Amending Act. It was categorically held by the Full Court that whatever be the decision of the courts, earlier than the coming into force of the Amending Act, a person would be a defaulter if the amount had not been deposited in terms of the Explanation added by the Amending Act. It opined as follows : "The provisions of Section 20(4) are by way of providing locus paenitentiae for a tenant who has been a defaulter and has, thus, I forfeited the protection of the rent control law. It leaves him a further opportunity to redeem his position, which has the effect of depriving the landlord of the right that has accrued to him as a result of the earlier default of the tenant. The Legislature cannot, therefore, be said to have acted unreasonably in requiring the tenant to comply with the provisions of Section 20(4) more strictly than with the provisions of Order XV, Rule 5, Civil Procedure Code". 12. In view of the principles laid down in the case of Siaram (supra) it is clear that the revisionist did not deposit the amount as required under Sub-sec.(4) of Section 20 of the Act in accordance with the Explanation added to the said sub-section by the Amending Act and as such the revisionist is not entitled to the benefit of Section 20(4) of the Act. 13. The argument of the learned counsel for the petitioner that the Explanation added by the Amending Act was not applicable is based on the hypothesis that this Explanation is not retrospective but prospective. His argument is that since the suit had been filed earlier, therefore to such a suit this Explanation added by the Amending Act did not apply. In my opinion this argument is wholly fallacious. With the coming of the Amending Act, if a tenant wanted to take the benefit of Section 20(4) of the Act, he had to deposit the amount in accordance with law that was applicable on the date when he was required to deposit the amount. In my opinion this argument is wholly fallacious. With the coming of the Amending Act, if a tenant wanted to take the benefit of Section 20(4) of the Act, he had to deposit the amount in accordance with law that was applicable on the date when he was required to deposit the amount. On 16th July, 1976 when the date for hearing of the suit was fixed in the summons, the Explanation was fully applicable. If the tenant wanted to relieve himself of the liability of eviction on the ground of default, he had to deposit the amount on that date. The amount had to be deposited after coming into force of the Act. The question of retrospectivity is wholly irrelevant. The mere fact that the suit had been filed earlier cannot take away the effect of the beneficient provisions added by the Amending Act. If the statute confers a concession or a privilege and prescribes the mode of acquiring it, the mode so prescribed must be adopted as even affirmative words in such cases are construed imperative. 14. Explanation to Section 20(4) of the Act inserted by Amendment Act, of 1976 applies to suits which have been filed before the coming into force of the amendment. 15. In the result, the revision fails and is, accordingly dismissed, but in the circumstances of the case, the parties are directed to bear their own costs.