BINA DEVI PANDEY v. II ADDITIONAL DISTRICT JUDGE — 1991 DIGILAW 1275 (ALL)

JUDGMENT : R.A. Sharma, J. Petitioner in Writ Petition No. 14772 of 1982 (hereinafter referred to as the landlady) is the owner of a house of which the Petitioner in other Writ Petition No. 15041 of 1982 (here-in-after referred to as the tenant) is the tenant. The landlady filed a suit for rent and ejectment of the tenant from the disputed house. This suit was decreed on 21-12-1978 by learned Civil Judge, Ballia, who was exercising powers of the Judge, Small Causes Court. The tenant thereafter filed a revision u/s 25 of the Provincial Small Causes Court Act, which has been allowed by the learned II Additional District Judge, Ballia on 20-8-1982 and the case was remanded back to the trial court for fresh decision. Against the aforesaid judgment of the revisional court both the landlady and the tenant have filed the aforesaid writ petitions. 2. I have heard the learned Counsel for the parties. 3. The revisional court has held that the landlady is not the landlord within the meaning of Section 3(J) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (here in-after referred to as the Act) Although the finding of the trial court regarding the date of construction of the house was accepted by the revisional court but the case was remanded on the ground that the tenant, in view of the pleadings of the landlady in the plaint to the effect that the house in question was constructed in 1971, could not take advantage of Section 39 of the Act by depositing the rent etc. 4. The 'landlord' has been defined in Section 3(J) of the Act as follows: "Landlord," in relation to building, means a person to whom its rent is or if the building were sold, would be, payable and includes, except in Clause (g), the agent or attorney, or such person. Trial court on the basis of the tenant's own evidence, namely, DW 1, DW 2 and the rent receipts as well as the allegations made in the plaint, sale deed and the sanction plan, recorded a finding of fact that the Petitioner in Writ Petition No. 14772 of 1982 is the landlady and is entitled to maintain the suit. The case set up by the tenant that the landlady's husband is the landlord was disbelieved. The case set up by the tenant that the landlady's husband is the landlord was disbelieved. Revisional court made its own appraisal of evidence on record and recorded a finding of fact to the effect that the landlady is not the landlord within the meaning of the Act. It is well settled that a court exercising the power of revision u/s 25 of the Provincial Small Causes Court Act can only interfere on the question of law and it is not open to it to reappraise the evidence and record a different? finding of fact. The revisional court as such, was not justified to set aside the decision of the trial court on this question by recording a different finding after reappraisal of the evidence. 5. The landlady filed the suit for eviction of the tenant with the allegations that the house in question was constructed in 1971. However, the case of the Defendant tenant was that the house in question was constructed in 1968. In support of his case the Defendant produced evidence in order to establish that the house was constructed in 1968 and not in 1971. The trial court believed the case of the Defendant-tenant and held that the house was constructed on 1-4-1968. As the suit was filed on 28-1-1978 on which date the disputed house has not completed ten years the trial court held that the Act became applicable to the house in April, 1978. The trial court further recorded a finding that "the Defendant has not sought the help of Section 39 of U.P. Act No. 13 of 1972." The revisional court although, confirmed the finding of the trial court about the date of construction of the house but remanded the case on the ground that as the Plaintiff has pleaded in her plaint that the house was constructed in 1971, the Defendant-tenant did not make necessary deposits u/s 39 of the Act in 1978 after the Act became applicable to it. With these observations the revisional court came to the conclusion that the tenant was deprived of the opportunity to take advantage of Section 39 due to the pleadings made in the plaint. This order cannot be sustained for the following reasons : Firstly, the trial court has recorded a finding that the Defendant-tenant did not seek the help of Section 39 of the Act. This order cannot be sustained for the following reasons : Firstly, the trial court has recorded a finding that the Defendant-tenant did not seek the help of Section 39 of the Act. If a tenant does not want to take advantage of Section 39 of the Act, no court can confer unasked for benefit on him. Secondly, the tenant's own case was that the building was constructed in 1968 and he produced evidence in support thereof. Trial court accepted the tenant's case and held that the building was constructed in 1968. With these allegations about the date of construction of the house made by the tenant and the evidence produced by him in support thereof, it cannot be said that the tenant was taken by surprise due to the pleadings made in the plaint. It was open to the tenant to make necessary deposit according to the case set up by him. Thirdly, even if Section 39 of the Act is applicable to the instant case, the tenant had to deposit in the court where the suit was pending the entire amount of the rent and damages for use and occupation together with interest at the rate of 9% per annum and the landlord's full cost of the suit within one month from the date of commencement of the Act or from the date of first knowledge of pendency of the suit whichever be later. Time for making deposit u/s 39 of the Act having been fixed by the Statute itself, it is not open to the court to extend that time. As mentioned above, the ground on which the case was remanded to the trial court by the revisional court was that the tenant could not take advantage of Section 39 of the Act in view of the averments made in the plaint about the date of construction of the house. Even if it is taken as true, the time for making the deposit has already expired long ago. It was not open to the revisional court to remand the case to the trial court after setting aside its order so as to permit the tenant to make necessary deposit u/s 39 of the Act after expiry of the statutory period. 6. For the reasons given above Writ Petition No. 14772 of 1982 is allowed and the order of the revisional court dated 20-8-1982 is quashed. 6. For the reasons given above Writ Petition No. 14772 of 1982 is allowed and the order of the revisional court dated 20-8-1982 is quashed. The order of the trial court is restored. The other Writ Petition No. 15041 of 1982 is dismissed. There shall be no order as to costs.