RAGHUBAR DAYAL Vs. DISTT JUDGE ETAH

JUDGEMENT

(1.) The respondent-landlord filed a suit for eviction and for recovery of arrears of rent and damages. The suit was originally dismissed by a judgment and decree dated 28/07/1976. However, the learned District Judge, Etah allowed the revision petition filed by the plaintiff, set aside the dismissal and decreed the suit. On further revision by the tenant the High court set aside the order of the learned District Judge and remanded the matter to him for fresh disposal in accordance with the law. It may be mentioned that the remand order of the High court wason the ground that the period of 10 years after completion of the building in question ended only on 31/12/1976 and in consequence thereof the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter called 'the Act') would be applicable to the building in question. After the remand the District Judge considered the entire amount of rent and damages for use and occupation of the building together with interest thereon at the rate of 9 per cent per annum and the landlords cost of suit in respect thereof in order to find out whether the tenant was entitled to defend the suit for eviction. However, the District Judge wrongly proceeded that the provision of law applicable was S. 39 while, in fact, the District Judge should have considered the provision applicable was S. 20 (4 of the Act. Though S. 39 is in pari materia with S. 20 (4, there is no explanation clause which is found in S. 20 (4. The District Judge as well as the High court held under the said provisions the tenant is bound to deposit the advocates fee and the fee of his clerks as "taxable" irrespective of whether any fee certificate has been filed or not and since the deposit made by the tenant did not include the advocates fee, the deposit was not in order. In this appeal, the learned counsel for the appellant contended that the question whether the deposit under Section 39 should include the advocates fee or not is pending consideration before a Constitution bench, and therefore the matter will have to be deferred. We are of the view that S. 39 is not the relevant provision, but it is S. 20 (4 that is relevant because the suit in this case was filed in 1974 after the Act came into force and S. 39 is applicable only to a case when the suit was pending on 15/07/1972 when the Act came into force. There is an explanation to Ss. (4 of S. 20 and that defines the expression cost of suit as including one half of the amount of counsels fee if taxable for contested suit. The word used is 'taxable and not taxed cost. Apart from that Ss. (4 requires the deposit to be made of entire arrears of rent including landlords cost of the suit 'at the first hearing'. The question of taxing would not arise at that stage and a fortiori the question of the lawyer filing the fee certificate also could not arise.

(2.) In the circumstances, therefore, the deposit by the tenant should include the one half of the amount of counsel fee taxable for a contested suit. That not having being done in this case, the order of eviction could not be assailed. The appeal accordingly fails and it is dismissed. However, there will be no order as to costs.

(3.) Time of one year for eviction and handing over vacant possession is granted from 1/04/1990 subject to the filing of the usual undertaking within four weeks from today.