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2014 DIGILAW 701 (ALL)

Jagannath Prasad v. D. J.

2014-02-25

SUDHIR AGARWAL

body2014
JUDGMENT Sudhir Agarwal,J.: - Heard Smt. Rajni Ojha, learned counsel for the petitioner. On behalf of respondent no. 2, though notices have been issued through various modes including by publication but neither respondent no. 2 has chosen to put in appearance through his counsel nor has appeared personally. In the circumstances, I proceed to decide the matter. 2. The petitioner-landlord instituted suit for eviction of respondent-tenant on the ground of default in payment of rent. It is not in dispute that accommodation in question having been constructed in 1975 on the date of filing of suit, i.e., in 1983 vide plaint dated 01.03.1983 U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act, 1972") was not applicable in view of Section 2(2) of of Act, 1972. The Trial Court decreed the suit vide judgment dated 20.05.1985 holding the tenant defaulter in payment of rent and considering the fact that tenancy was validly terminated. However, the revision preferred by respondent-tenant has been allowed by District Judge, Ballia vide judgment dated 10.09.1986 only on the ground that 10 years from the date of construction of building was completed in September, 1983 and Act, 1972 became applicable on the building whereupon the defendant-revisionist has complied with requirement of Section 39 of Act, 1972, hence decree for eviction cannot be granted and having said so it allowed the revision and set aside the judgment of Trial Court, so far as it decreed suit for eviction of defendant-revisionist from shop in dispute. 3. It is contended that Section 39 of Act, 1972 is applicable only in those matters where proceedings were pending at the time of commencement of Act, 1972 and is not extended to the event of subsequent application of Act. 4. Section 39 of Act, 1972 reads as under: "39. 3. It is contended that Section 39 of Act, 1972 is applicable only in those matters where proceedings were pending at the time of commencement of Act, 1972 and is not extended to the event of subsequent application of Act. 4. Section 39 of Act, 1972 reads as under: "39. Pending suits for eviction relating to building brought under regulation for the first time.--In any suit for eviction of a tenant from any building to which the old Act did not apply, pending on the date of commencement of this Act, where the tenant within one month from such date of commencement or from the date of his knowledge of the pendency of the suit, whichever be later, deposits in the Court below which the suit is pending, the entire amount of rent and damages for use and occupation (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord's full cost of the suit, no decree for the eviction shall be passed except on any of the grounds mentioned in the proviso to sub-section (1) or in clauses (b) to (g) of sub-section (2) of Section 20, and the parties shall be entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary; Provided that a tenant the rent payable by whom does not exceed twenty-five rupees per month need not deposit any interest as aforesaid." (emphasis added) 5. The Apex Court has considered Section 39 in Suresh Chand Vs. Gulam Chisti, AIR 1990 SC 897 and for application thereof, in para 5 of the judgment, it has said: "5. The Apex Court has considered Section 39 in Suresh Chand Vs. Gulam Chisti, AIR 1990 SC 897 and for application thereof, in para 5 of the judgment, it has said: "5. The plain reading of Section 39 makes it clear that the said section obliges the court to refuse to pass a decree for eviction, except on any of the grounds mentioned in the proviso to sub-section (1) or in clauses (b) to (g) of sub- section (2) of Section 20, if the following four requirements are satisfied: (i) the building is one to which the old Act (the U.P. (Temporary) Control of Rent and Eviction Act, 1947--U.P. Act No. III of 1947) did not apply; (ii) the eviction suit must be pending on the date of commencement of the Act i.e., 15th July, 1972; (iii) the tenant deposits in court the entire amount of rent/damages for the use and occupation of the building together with interest at 9% per annum and the landlord's full cost of the suit; and (iv) such deposit is made within one month from the date of commencement of the Act or from the date of knowledge of the pendency of the eviction suit, whichever is later. The benefit of Section 39 is extended mutatis mutandis to an appeal or revision arising out of an eviction suit to which the old Act did not apply provided the said appeal or revision was pending on the date of commencement of the Act. (emphasis added) 6. Similar argument was raised in Suresh Chand Vs. Gulam Chisti (supra) that the words "commencement of this Act" occurring in Section 39 will construe to mean the date on which moratorium period expired and the Act became applicable to the concerned building. Rejecting it in paras 16 to 18 of the judgment the Court said: "16. It therefore seems to us that the legislature desired to limit the scope of the application of Sections 39 and 40 to suits, appeals and revisions pending on the date of commencement of the Act, i.e. 15th July 1972, relating to buildings to which the old Act did not apply and to which the new Act was to apply forthwith and not at a later date. This is clear from the fact that the section contemplates deposit of arrears of rent and damages together with inter- est and cost within one month from "such date of commencement" meaning the date of commencement of the Act. To put it differently the section expects the tenant to make the deposit within one month from 15th July, 1972. This may not be possible unless the Act is to apply to the building forthwith. Of course the benefit of an extended date is given to those cases where the knowledge about the pendency of the proceedings is gained after 15th July, 1972. For example where a suit is actually filed before the commencement of the Act but the summons of the suit is served in October 1972, the tenant would be entitled to make the deposit within one month from the service of the summons to avail of the benefit of this provision. So also it can apply to cases where the tenant had died before the Act came into force or before the expiry of one month from the date of commencement of the Act and the landlord took time to bring the legal representative on record; in which case the legal representative would be entitled to seek the benefit from the date of knowledge. Of course this benefit would not be available where the tenant dies after the expiry of the period within which the right is to be exercised. The same would be the case in the case of an appeal or revision application. It seems to us that the legislature intended to give the benefit of Sections 39 and 40 to suits, appeals or revisions which were pending on 15th July, 1972 and in which the deposit came to be made within one month from that date. The expression such preceding the word 'commencement' is clearly suggestive of the fact that it has reference to the date of commencement of the Act and the payment must be made within one month from such commencement. Unless we give such a restricted meaning to the section we would not be able to advance the legislative intent to relieve the landlords of new buildings from the rigours of the Act. This interpreta- tion is also in tune with the ratio in Ram Swaroop Rai's case (supra). 17. Unless we give such a restricted meaning to the section we would not be able to advance the legislative intent to relieve the landlords of new buildings from the rigours of the Act. This interpreta- tion is also in tune with the ratio in Ram Swaroop Rai's case (supra). 17. It was argued that the words 'commencement of this Act' should be construed to mean the date on which the moratorium period expired and the Act became applicable to the demised buildings. Such a view would require this Court to give different meanings to the same expression appearing at two places in the same section. The words 'on the date of commencement of this Act' in relation to the pendency of the suit would mean 15th July, 1972 as held in Om Prakash Gupta (supra) but the words 'from such date of commencement' appearing immediately thereafter in relation to the deposit to be made would have to be construed as the date of actual application of the act at a date subsequent to 15th July, 1972. Ordinarily the rule of construction is that the same expression where it appears more than once in the same statute, more so in the same provision, must receive the same meaning unless the context suggests otherwise Besides, such an interpretation would render the use of prefix 'such' before the word 'commencement' redundant. Thirdly such an interpretation would run counter to the view taken by this Court in Atma Ram Mittal's case (supra) wherein it was head that no man can be made to suffer because of the court's fault or court's delay in the disposal of the suit. To put it differently if the suit could be disposed of within the period of ten years, the tenant would not be entitled to the protection of Section 39 but if the suit is prolonged beyond ten years the tenant would be entitled to such protection. Such an interpretation would encourage the tenant to pro- tract the litigation and if he succeeds in delaying the disposal of the suit till the expiry of ten years he would secure the benefit of Section 39, otherwise not. We are, therefore, of the opinion that it is not possible to uphold the argument. 18. Such an interpretation would encourage the tenant to pro- tract the litigation and if he succeeds in delaying the disposal of the suit till the expiry of ten years he would secure the benefit of Section 39, otherwise not. We are, therefore, of the opinion that it is not possible to uphold the argument. 18. In the above view of the matter we are of the opinion that the courts below committed an error in giving the benefit of Section 39 of the Act to the tenant since admittedly the tenant could not and had not made the deposit within one month from the date of commencement of the Act on 15th July, 1972 but had made the deposit within a month after the moratorium period expired in 1977. As stated above the legislature intended to limit the application of Sections 39 and 40 of the Act to cases where the Act became applicable immediately and the deposit could be made within one month from its applicability and not to cases where the moratorium period was to expire long thereafter." 7. In the present case the condition no. 2 that suit was pending on the date of commencement of Act, 1972, i.e., 15.07.1972, is clearly missing inasmuch as suit itself was filed in 1983 and subsequent application of Act, 1972 does not attract Section 39. The Revisional Court, therefore, has erred in law in taking recourse to Section 39 of Act, 1972 in the present case. 8. In view of above, the writ petition is allowed. The impugned order dated 10.09.1986 is hereby set aside and the judgment and decree passed by Trial Court is hereby confirmed. No costs.