Harkesh Chand v. Additional District Judge — 1992 DIGILAW 1274 (ALL)

JUDGMENT Sudhir Narain, J. - This writ petition is directed against the order dated 3-12-1977 and 4-6-1976 passed by the Respondents 1 and 2 respectively in suit No. 85 of 1972. 2. The Petitioner is a tenant of a shop cum-residential accommodation situate in Doiwala, Distt. Dehradun. Smt. Krishnawati and the Respondents 3 to 5 filed suit No. 85 of 1972 against the Petitioner for arrears of rent, ejectment and damages. They filed suit on the ground that U.P. Act, 13 of 1972 did not apply to the locality where the accommodation in question was in existance They terminated the tenancy of the Petitioner and inspite of the service of the notice he did not vacate the premises. The provisions of U.P. Urban Buildings (Regulation of lettings, rent and eviction) Act, 1972 were not applicable to the disputed premises. 3. In the suit summons were issued by ordinary process as well as by registered post to the Petitioner. He received the summons by registered post on 7-6-1973 and the summons by ordinary process on 1-7-1973. He deposited rent etc. in the Court purporting to be u/s 39 of U.P. Urban Buildings (Regulation of lettings, rent and eviction) Act, 1972 (hereinafter referred to as the Act). The Petitioner also filed a written statement in the case and claimed the benefit of deposit which he made under the provisions of section 39 of the Act. 4. On 31-1-1974, the plaintiffs filed an application for amendment of plaint stating that the property in question devolved on the death of Dr. Yogaraj on them only and the Respondents 6 and 7 be impleaded as parties to the suit. The application was allowed by Munsif Dehradun by order dated 11-3-1974. On 15-5-1975, the trial Court framed five issues in the case. The issue No. 4 was as to whether the Petitioner was entitled to the benefit of section 39 of the Act. The trial Court held that U.P. Act No. 3 of 1947 was applicable to the premises and thereafter U.P. Act No. 13 of 197? was applicable. The provisions of section 39 of U.P. Act No. 13 of 1972 was not applicable as the suit was filed on 1-11-1972 and it was not pending on the date of commencement of the Act i.e. 15-7-1972. was applicable. The provisions of section 39 of U.P. Act No. 13 of 1972 was not applicable as the suit was filed on 1-11-1972 and it was not pending on the date of commencement of the Act i.e. 15-7-1972. He, however, held that summons were served on the Petitioner on 7-6-1973 and the Petitioner having not deposited the amount within one month from the date of knowledge of the suit he was not entitled to the benefit of the said section. The Petitioner filed revision against the said order and the Addl. District Judge Dehradun affirmed the said order by order dated 3-12-1977. 5. I have heard Shri Prakash Krishna, the learned Counsel for the Petitioner and Shri N.C. Rajvanshi, learned Counsel for the Respondent. 6. The first submission of the learned Counsel for the Petitioner is that during the pendency of the revision, he had filed an application that the delay in deposit of amount be condoned. The Respondent No. 1 illegally rejected the application to condone delay on the ground that Section 5 of the Limitation Act was not applicable regarding any deposit which is to be made by a tenant u/s 39 of the Act relying upon the case in Shree Chand Gupta v. Madan Lal 1973 ALJ 635 . It is contended by the learned Counsel for the Petitioner that the said decision was based upon the observations in full Bench decision of Janta Cycle and Motor Mart, Kanpur Vs. Asst. Commissioner (J), III Sales Tax Kanpur Range, Kanpur and Another, AIR 1969 All 200 , and the said decision having been overuled by the Supreme Court in Lalta Prasad Khinni Lal Vs. The Asstt. Commissioner (Judl.) Sales Tax, Kanpur and Another, AIR 1972 SC 401 , it should be taken that Section 5 of the Limitation Act was applicable to any deposit which is to be made by a tenant within a stipulated period as provided u/s 39 of the Act. The argument of the learned Counsel for the Petitioner is not correct. Shree Chand Gupta's case was based on the ratio that Section 39 of the Act does not contemplate the filing of an application. The Court observed as follows : Section 5 of the Limitation Act applies only to those cases where a delay has occurred in filing an appeal or application. Shree Chand Gupta's case was based on the ratio that Section 39 of the Act does not contemplate the filing of an application. The Court observed as follows : Section 5 of the Limitation Act applies only to those cases where a delay has occurred in filing an appeal or application. Section 39 Or 40 of the Act does not contemplate the filing of any application. These Sections require a deposit being made within one month of the commencement of the Act. Making of a deposit is not tantamount to filing of an application. Section 5 cannot, therefore, be pressed into service to get the delay in making the requisite deposit under Sections 39 and 40 of the Act condoned. 7. The Court while taking this view also relied upon the certain observations made in M/s. J.C.M. Mart v. Asstt Comm. (Supra). In that case appeal was filed within limitation before the Asstt. Commissioner but the assessee did not deposit the admitted tax within time and an application was filed u/s 5 of the Limitation Act but the same was rejected on the ground that as the appeal was filed within time, the application u/s 5 of the Limitation Act could not be entertained only for the purpose of making the deposit. The Supreme Court in M/s. L.P.K. Lal case (Supra) held that the appeal could not be treated within time as amount of admitted tax as required under law was not filed in time. The Court held : In other words the appeal will be deemed to have been properly filed on the date on which the amount of admitted tax is paid. If that is beyond the period of 30 days the appeal will be barred by time. Section 9(6) will immediately become applicable to that appeal and it will be open to the Appellant to apply for condonation of delay under that provision. 8. The Supreme Court held that the appeal was filed, shall not be treated as filed within time and therefore, the application u/s 5 of the Limitation Act was applicable to condone the delay in filing the appeal within time. The ratio of the case in S.C. Gupta's case was not diferred. There was no occasion before the Supreme Court to consider the situation as contemplated u/s 39 of the Act. The ratio of the case in S.C. Gupta's case was not diferred. There was no occasion before the Supreme Court to consider the situation as contemplated u/s 39 of the Act. A bare reading of section 5 of the Limitation Act will itself make clear that the said section is applicable only when the law requires any appeal or any application is to be filed which reads as under : Extension of prescribed period in certain cases : Any appeal or any application, other than an application under any of the provisions of Or. XXI of the Code of Civil Procedure, 1908 may be admitted after the prescribed period if the Appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. 9. Section 39 of the Act does not contemplate any application before any deposits is to be made. This provision only gives benefit to the tenant who wants to save their eviction provided they deposit their amount as required in the said Section within one month from the date of commencement of the Act or from the date of knowledge of the pendency of the suit. It does not require any petition to be filed and no permission of the Court is necessary for making such deposit. The decision in S.C. Gupta's case was followed in Deep Chand Vs. Babu Ram, AIR 1976 All 478 and Banarsi Lal v. Smt. Saqiran Begum 1983 (1) ARC 417. 10. The next contention of the learned Counsel for the Petitioner is that the Petitioner received summons by registered post on 7-6-1973 and the summons by ordinary process on 1-7-1973. He did not receive any copy of the plaint when he received summons by registered post, and, in fact, he received a copy of the plaint when he received summons by ordinary process through Process Server of the Court. 11. The Petitioner had admittedly received the notice of this suit containing the summons which he received on 7-6-1973. He nowhere stated before the trial Court that he did not receive any copy of the plaint. It was for the first time in the revision, the urged that he did not receive any copy of the plaint alongwith a registered notice which he received on 7-6-1973. He nowhere stated before the trial Court that he did not receive any copy of the plaint. It was for the first time in the revision, the urged that he did not receive any copy of the plaint alongwith a registered notice which he received on 7-6-1973. In case the Petitioner had not received any copy of the plaint it was open to him to raise this objection before the trial Court. He never demanded copy of the plaint from the plaintiffs nor raised any objection that the registered notice did not contain the copy of the plaint. The presumption under law is that in the ordinary course the notice contains the copy of the plaint as well. The petitions filed affidavit before the Court in revision. In the affidavit as well, he did not disclose why he did not raise any objection before the trial Court. The Respondent No. I was right in his observation that in a regular course of events, it is to be presumed that copy of the plaint must have accompanied the summons. The Court rightly rejected the affidavit filed by the Petitioner in the revision on the ground that no reason was given as to why the same was not filed before the trial Court 12. It is, further contended that the summons were sent by registered post and by ordinary process simultaneously and unless there was a specific order of the Court to serve the summons by both ways simultaneously, the service of the notice by registered post on 7-6-1973 shall be treated as invalid and no service under law. He relied upon order 5 rule 19A of the CPC which provides that the Court shall, in addition to, and simultaneously with the issue of summons for service in the manner provided in rule 9 to 19 (both inclusive), also direct the summons to be served by registered post. This is an enabling provision. The learned Counsel for the Petitioner contended that there was no specific order of the trial Court to issue summons by registered post as well, and in absence of any such specific order the summons which was served by registered post was invalid. The Petitioner had not raised this objection before the trial Court. This is an enabling provision. The learned Counsel for the Petitioner contended that there was no specific order of the trial Court to issue summons by registered post as well, and in absence of any such specific order the summons which was served by registered post was invalid. The Petitioner had not raised this objection before the trial Court. It is not denied that the summons contains signatures of the Court and unless the Court had directed so and put his signatures on the summons, even the summons could not have been sent by registered post. The learned Counsel for the Petitioner relied upon a decision of the Patna High Court in State of Bihar Vs. K.M. Zuberi and Others, AIR 1986 Patna 166 . The Court was considering the application to set aside the ex-parte decree filed under order IX rule 13 of the Code of Civil Procedure. In that case, the summons were sent by registered post as well as by ordinary process and the notices were returned with endorsements of refusal and thereafter the notice was taken to have been served by Substituted service under order 5 rule 20 of the Court. In that context, the Court was examining the validity of the service. In the present case admittedly the summons was also received by registered post and the question of the service is not relevant. There is another aspect of the matter. Section 39 of the Act provides that the tenant can take benefit of the said Section by making the deposit within one month from the date of commencement of the Act or within one month from the date of knowledge of the pendency of the suit. The language of order 9 rule 13 of CPC is different which provides that the defendant must be duly served with notice. Admittedly, the Petitioner had knowledge of the suit on 7-6-1973 and therefore, the submission of the learned Counsel for the Petitioner that there was irregularity in the service of notice is not applicable to the case of the Petitioner. 13. The third submission of the learned Counsel for the Petitioner is that orginally the suit was filed by the Respondents 3 to 5 and Smt. Krishnawati and they did not implead the two daughters of Dr. Yoga Raj who was the landlord. The accommodation in question was let out by Dr. 13. The third submission of the learned Counsel for the Petitioner is that orginally the suit was filed by the Respondents 3 to 5 and Smt. Krishnawati and they did not implead the two daughters of Dr. Yoga Raj who was the landlord. The accommodation in question was let out by Dr. Yoga Raj and after his death his rights devoloved upon his widow Smt. Krishnawati, three sons, the Respondents 3 to 5 and two daughters, Respondent No. 6 & 7 but the suit was filed only by Smt. Krishnawati and his sons. The plaintiffs filed an application for amendment of the plaint for adding the name of their sisters as Defendants in the said suit. The amendment application was allowed by the trial Court on 11-3-1974. The learned Counsel for the Petitioner urged that the suit shall be treated as properly instituted on 11-3-1974 and the deposit of the amount by the Petitioner was prior to it, should be treated as valid deposit as contemplated u/s 39 of the Act. 14. The case of the plaintiffs was that Dr. Yoga Raj had executed a will bequeathing his property in favour of his sons. The names of the daughters of Dr. Yoga Raj were impleaded as Defendants in the suit by way of abundant caution. The plaintiffs also moved an application 17/C-l ascertaining these facts in revision and also filed an affidavit paper No. 18/C in support of the application. The learned Counsel for the plaintiffs-Respondents submitted that as the property was not bequeathed in favour of the daughters by Dr. Yoga Raj, the property in question did not devolve upon them and the suit was rightly filed by his sons and widow against the Defendants. Secondly, they urged that the plaintiffs were entitled to file the suit and terminate the tenancy as they were collecting the rent from the tenant. They placed reliance upon Girraj Kishore v. Dr. Trilokinath Vimal AIR 1988 All. 305 . It is not necessary to decide this question in the present writ petition. The suit has yet not been decided and the trial Court will consider this question. In case the tenant wants to take benefit of section 39 of the Act, he is liable to deposit the entire arrears of rent etc. as provided u/s 39 of the Act. 15. The suit has yet not been decided and the trial Court will consider this question. In case the tenant wants to take benefit of section 39 of the Act, he is liable to deposit the entire arrears of rent etc. as provided u/s 39 of the Act. 15. The last submission of the learned Counsel for the Petitioner is that on the date of filing of the suit U.P. Act No. 13 of 1972 was not applicable. The U.P. Act No. 13 of 1972 was made applicable to the locality where the accommodation in question of the suit is existing, by a notification dated 23-7-1972 issued under first proviso to sub-section 3 of section 1 of U.P. Act No. 13 of 1972. The Courts below have taken the view that the Act came in force on 15th July, 1972 by a notification issued under sub-section 4 of Section 1 of the Act. The date of the 'commencement of the Act' was 15th July 1972 and as the suit was filed on 1-11-1972, the Petitioner was not entitled to the benefit of the section 39 of the Act. The Courts below relied upon the decisions Om Prakash Gupta v. Dig Vijendrapal Gupta. 1982 (1) ARC 391, Nand Kishore Marwah v. Samundari Devi, 1987 (2) ARC 351 & Suresh Chand v. Gulam Chisti 1990(1) ARC 233. 16. It was urged that in these cases the Supreme Court was interpreting the word 'commencement of the Act' but in case where the Act was not applicable on the commencement of the Act, these cases will not be applicable as the Act itself was not made applicable with the commencement of the Act. He placed reliance upon Lala Ram Gupta v. IIIrd Addl. District Judge 1983 (1) ARC 659. In the said case, there was no occasion for the Court to consider the decision of the Supreme Court in Suresh Chand v. Gulam Chisti {supra). The ratio of the Supreme Court clearly indicated the distinction between the "applicability of the Act" and "commencement of the Act". The applicability of the Act may be regarding a locality by issuing a notification under the first proviso to sub-section 3 of Section 1 of the Act or with regard to an accommodation. The ratio of the Supreme Court clearly indicated the distinction between the "applicability of the Act" and "commencement of the Act". The applicability of the Act may be regarding a locality by issuing a notification under the first proviso to sub-section 3 of Section 1 of the Act or with regard to an accommodation. In case the accommodation is in existence on the date of the commencement of the Act but 10 years have not completed the Act will not be applicable till the completion of 10 years as it will be exempt u/s 2(2) of the Act or a building may not be in existence on the date of the commencement of the Act but subsequently it is constructed and after the period of exemption passes, the said accommodation may be covered under the Act. The Supreme Court confined itself to the commencement of the Act by a notification which was issued under sub-section 4 of section 1 of the Act. The Supreme Court in Suresh Chand's case (Supra) observed that : The Act came into force w.e.f. 15th July 1972 by virtue of the notification issued by State Government in exercise of power conferred by sub-section 4 of the section 1 of the Act, vide Notification No. 3409/XXIX-59-72 dated 27 June, 1972 published in the U.P. Government Gazette, Extra, dated 1st July 1972. 17. Even if it is accepted that the Act became applicable to the property in question on 23-1-1972, the Petitioner did not deposit the money within one month from the date of notification or from the date of the knowledge of the suit. 18. No further point has been pressed. 19. The writ petition is accordingly dismissed. The parties shall bear their own costs.