BANARSI LAL Vs. SAGHIRAN BEGUM

JUDGEMENT

(1.) This is a tenant's appeal by special leave against the judgment of the Allahabad High Court dismissing his second appeal arising out of a suit for ejectment of the appellant filed by the landlord-respondent in respect of a shop. One of the questions which came, up for consideration in the suit was as to whether the U.P. (Temporary Control of Rent and Eviction) Act, 1947 (U.P. Act III of 1947) was or was not applicable to the shop in question. The trial court held that the said Act was not applicable. Other pleas raised in defence by the appellant having failed, a decree for eviction and for recovery of damages for use and occupation was passed against him on 19th Aug. 1971. The trial court however, directed the parties to bear their own costs. Against that decree an appeal was preferred by the appellant. During the pendency of the appeal, the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act 13 of 1972), hereinafter referred to as the Act, was enforced with effect from 15th July, 1972. The appellant made deposit contemplated by S. 39 read with S. 40 of the Act on 19th July, 1972, that is, within one month from 15th July, 1972, which was the date of the commencement of the Act, in the lower appellate court and asserted that in view of the deposit so made he was entitled to be absolved from his liability for eviction from the disputed shop. The amount so deposited, however, did not include the costs of the suit. Subsequently, the appellant was permitted to deposit even the costs of the suit by the lower appellate court but at his own risk.

(2.) In regard to the claim of the appellant that he was entitled to be absolved from his' liability for eviction on account of the deposit made by him on 19th July, 1972, it was urged on behalf of the landlord-respondent that since the costs of the suit had not been deposited and the subsequent deposit thereof was beyond one month contemplated by S. 39 of the Act, the appellant was not entitled to the benefit of the said section read with S. 40. For the appellant, on the other hand, it was urged that since that trial court had directed the parties to bear their own costs the benefit of the aforesaid sections could not be denied to him for non-deposit of the costs of the suit. In the alternative, it was asserted by him that since the costs even of the suit were deposited subsequently the delay in the deposit was liable to be condoned. However, neither the main plea nor the alternative plea found favour with the lower appellate court and it dismissed the appeal with costs. It further passed a decree for the costs of the suit also in favour of the landlord-respondent by allowing the cross-objection filed by her in this behalf.

(3.) Aggrieved by the decree passed by the lower appellate court the appellant preferred a second appeal which was dismissed by the High Court by the judgment appealed against. The pleas which were raised by the appellant before the lower appellate court and the High Court in regard to the scope of S. 39 read with S. 40 of the Act have been reiterated before us by his learned counsel. In support of his alternative submission that the delay in depositing the costs of the suit deserved to be condoned, the learned counsel for the appellant placed reliance on a decision of this court in Krishna Kumar Gupta v. Addl. District Judge IV, (1987) 2 Ren CR 638. On the facts of the instant case, however, we do not find it necessary to go into the question as to whether the delay in making deposit contemplated by S. 39 can be condoned or not because in our opinion the appeal deserves to be allowed on the main submission made by learned counsel for the appellant, namely, that since the trial court had directed the parties to bear their own costs as a result of which the costs of the suit were not payable by the appellant on the date of the deposit, the non-deposit of the said costs within one month from 15th July, 1972 as contemplated by S. 39 of the Act could not deprive him of the benefit of the said section. What was the true import of the expression 'full costs' used in S. 39 of the Act, came up for consideration before a Division Bench of the Allahabad High Court in R.D. Ram Nath and Co. v. Girdhari Lal, 1975 All LJ 1. In so far as is relevant for the present case it was held: