BALRAM Vs. PRAKASH CHANDRA AGARWAL

JUDGEMENT

(1.) H. N. Seth, J. The petition under Article 226 of the Constitution by Smt. Munni Devi, owner, is directed against the revisional order dated 18-1-1979 passed by the 1st Additional District Judge, Kanpur by which he set aside the decree of the Judge Small Cause Court dated 1-5-1975 for ejectment of tenant Sri Prakash Chandra Agarwal. On 8-1-1972, the petitioner Smt. Munni Devi filed a suit for recovery of arrears of rent and ejectment against Sri Prakash Chandra Agarwal in the Court of Judge Small Causes, Kanpur. She alleged that Prakash Chandra Agarwal was her tenant in the first floor of house No. 112/340, Swaroop Nagar, Kanpur on payment of Rs. 140/- p. m. as rent. The plaintiff further claimed that the said accommodation was post 1950 construction and was not governed by the provisions of U. P. Act. No. 13 of 1947. She had terminated the tenancy of the defendants by means of a notice dated 22-10-1971 which was served upon him on 12-10-1971. As the defendant failed to vacate the accommodation after 25-11-1971 hence the necessity for filing of the suit for ejectment and arrears of rent arose. The defendant contested the suit on the ground that the accommodation in question was a pre 1950 construction which was governed by the U. P. Act No. 13 of 1972. As the suit had not been filed on one of the grounds mention ed in Section 20 of the U. P. Act No. 13 of 1972, the suit for defendant's ejectment was not maintainable. He also questioned the validity of the notice determining his tenancy and claimed that the landlord had, at a later stage waived the same. Subsequently, the defendant amended the written statement and pleaded that in view of the deposit made by him under Section 39 of the U. P. Act No. 13 of 1972, the suit for his ejectment was liable to be dismissed. The Trial Court found that the defendant did not make the deposit difference in accordance with the provisions of Section 39 of the U. P. Act, No. 13 of 1972 and as such was not entitled to the protection given to a tenant under the section. It held that the suit was not governed by the provisions of Section 20 of the U. P. Act No. 13 of 1972 and that the notice determining the tenancy of the defendant was neither invalid nor had it been waived by the landlord. In the result it, decreed the plaintiffs suit for ejectment and for recovery of Rs. 336-65 p. as manse profits upto, 8-1-1972 and for pendentilite and future mesne profits at the rate of Rs. 140/-p. m. Being aggrieved the defendants went up in revision before the 1st Additional District Judge, Kanpur. The revisional Court held that the accommodation in question was a post 1950 construction which was completed some time in March 1955 and the same was governed by provisions of U. P. Act No. 13 of 1972. Relying upon certain observations made by a learned Judge of this Court in the case of S. Ralzada v. Dr. MM. Misra, 1974 A. LJ. 65 which observations were according to the trial Court obiter held that even though the suit had been filed on 8-1-1972 and it was pending on 15-7-1972, when the U. P. Act No. 13 of 1972 came into force no decree could be granted except on one of the grounds mentioned in Section 20 of the Act. This was so even if the tenant did not make the deposit as contemplated by Section 39 of the Act within the time prescribed there for, in the result he held that as none of the grounds of Section 20 of the U. P. Act No. 13 of 1972 had been made out no decree for tenant's ejectment could be passed. So far as the other controversy raised in the case were concerned he agreed with the trial Court and held that the notice determining the tenancy of the tenant was neither invalid nor had it been waived. In the result he allowed the revision application and modifbd the decree passed by the trial Court by quashing that part of the decree which directed eviction of the tenant. Being aggrieved the petitioner has approached this Court for relief under Article 226 of the Constitution. Principle question that arises for consideration is as to whether in a suit for eviction of the tenant from an accommodation not covered by provisions of U. P. Act No. III of 1947 filed before coming into force of U. P. Act No. 13 of 1972 and pending on 15-7-1972 wherein the tenant did not make the deposit contemplated by Section 39 of the Act within the trios prescribed for making such deposit a decree for ejectment of the tenant can bs passed even though the grounds mentioned in Section 21 of the Act are not made out. Prior to the coming into force of U. P. Act No. XIII of 1972 control of letting of accommodations and eviction of tenant there from was being governed by the provisions of U. P. Temporary Control of Rent and Eviction Act No. III of 1947 which by Section 1 (a) laid it down that nothing in the Act was to apply to any building or part of building which was under erection or was constructed on or after January \, 1951. Thus the U. P. Act No. III of 1947 merely controlled the letting of and eviction of tenant from building constructed before 1-1-1951. Subsequently, the Legislature enacted U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 which came into force with effect from 15-7-1972. A Division Bench of this Court has, in the case of Smt. Radha Devi v. Prescribed Authority and others 1980 Alld. Rent Cases 46 while explaining the decision of the Supreme Court in the case of Ratan Lal Singhal v. Smt. Murti Devi 1979 Rent Cases 508 held that U. P. Act No. 13 of 1972 is applicable to all buildings which had been constructed prior to 15-7-1972 irrespective of the period which had elapsed since their construction. Accordingly, there existed two types of buildings on the date on which U. P. Act No. XIII of 1972 came into force: 1. The building to which U. P. Act No. III of 1947 was applicable and,

(2.) BUILDINGS constructed on or after 1-1-1951 and before 15-7-1972. Neither the letting nor the eviction of tenant from such building was till then being controlled by the State and the tenants of such buildings could be ejected under the general law. The scheme underlying U. P. Act No. 13 of 1972 as interpreted in Smt. Radha Devi's case (surpa) shows that on 15-7-1972 it brought both types of buildings within its ambit. The Act however, did not purport to reopen the proceedings in respect of the buildings belonging either of the two cases which were concluded and stood finalised before 15-7-1972. It however, made certain provisions dealing with the pending proceedings under U. P. Act No. III of 1947 in respect of buildings constructed prior to 1-1-1951 as also in respect of the buildings constructed between 1-1-1951 and 15-7-1972 so far as the pending proceedings under the provisions of U. P. Act No. III of 1947 in respect of buildings constructed prior to 1-1-1951 were concerned, the Legislature made detailed provisions for dealing with the same in Section 43 of the Act, containing provisions like Section 43 (2) (h) and 43 (2) (5) which laid down that any Court or authority before which any suit or proceedings relating to recovery or deter mination or fixation of rent or eviction from any building is pending immediately before the commencement of the Act may, on an application before made within 60 days from such commencement grant leave to any party to amend its pleading and that any suit for eviction of the tenant instituted on any grounds mentioned in sub- section (1) of Section 3 of the Act No. III of 1947 or any proceeding out of such suit including any proceeding for the execution of decree passed on the basis of any agreement, compromise or satisfaction pending immediately before the commencement of the Act shall be continued and concluded in accordance with the old Act which shall for that purpose, be deemed to continue to be in force. So far as the buildings constructed between 1-1-1951 and 15-7-1972 were concerned, it is clear that no proceedings in respect of such building could, on the date of commencement of the Act No. 13 of 1972 be pending before any authority concerned with the regulation of or controlling the rent, letting and eviction of tenants. Only pending proceedings, concerning such buildings, could be those relating to recovery of rent and eviction of tenants there from, initiated before regular Civil Courts under the general law. The Legislature did not, for obvious reasons, make any provision affecting the proceedings for recovery of arrears of rent of buildings constructed between 1-1-1951 and 15-7-1972 pending on the date on which U. P. Act No. XIII of 1972 came into force. It, however, made the following provision in Section 39 of the Act in connection with the suit for eviction from such buildings pending on the date on which U. P. Act No. XIII of 1972 came into force. "in any suit for eviction of a tenant from any building to which the old Act did not apply, pending on which the date of commencement of this Act where the 'tenant within one month from date of commencement or from the date of his knowledge of the pending of the suit, which ever be later, deposits in the Court before 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 costs of the suit, no decree for 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. " A perusal of this section shows that the Legislature intended that all suits for eviction of a tenant from buildings constructed between 1-1-1951 and 15-7-1972 were normally to be contained and brought to their logical conclusion unaffected by the provisions of the Act. It however, made an exception viz. in cases where the suit was for ejectment of tenant and the tenant deposited in the Court before which the suit was pending entire amount of rent and damages for use and occupation together with interest thereon at the rate of 9 p. c. and landlord's full cost, of suit no decree for ejectment was to be passed unless necessary facts bringing the case within the ambit of the provisions contained in sub-section (1) or in clauses (b) to (g) of sub-section (2) of Section 20 were made out. It is apparent that when in Section 39 the Legislature provided that the tenant must deposit the entire amount of rent and damages for use and occupa tion before the Court, before wliich the suit is pending, it certainly did not intend that dispute making that deposit the tenant should be of the grounds mentioned in clauses (b) to (g) of ejected on the ground mentioned in clause (a) of Section 20 (2) of the Act was made out. The Legislature did not intend that in a case where the tenant did not in relation to a suit, concerning a build ing constructed between 1-1-1951 and 15-7-1972 and pending on the date on which the U. P. Act No. XIII of 1972 came into force, deposit the amount mentioned in Section 39 of the Act, the suit should either not be brought to its logical conclusion or that the advantage specified in Section 39 of the Act should still be given to him. Relevant portion of Section 20 runs thus; " (1) Save as provided in sub-section (2) no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner:- (2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds namely: (a ). . . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . (c ). . . . . . . . . . . . . . . . . . . . . (d ). . . . . . . . . . . . . . . . . . . . . (e ). . . . . . . . . . . . . . . . . . . . . (0. . . . . . . . . . . . . . . . . . . . . (g ). . . . . . . . . . . . . . . . . . . . . (3 ). . . . . . . . . . . . . . . . . . . . . . . . . . . (4 ). . . . . . . . . . . . . . . . . . . . . . . . . . . (5 ). . . . . . . . . . . . . . . . . . . . . . . . . . . (6 ). . . . . . . . . . . . . . . . . . . . . . . . . . . In the case of Man Singh v. Cfi. Bislwmbar Singh and another, 1975 A. L. R. 335 a Divisibo Bench consisted of Hon. Yashoda Nandan and Hon. K. C. Agarwal, JJ. obser ved thus: "an analysis of Section 20 makes it clear that it is prospective and is a bar merely to the institution of suits after the corning into Act. The suits giving rise to the instant revision was already pending on the date when the Act came into force and is not liable to be dismissed on the mere ground that its continuance is barred by section of the Act. " This shows that the bar created by sub-section (3) of Section 20 has on its own, no bearing or effect on a suit for ejectment from a building pending on 15-7-1972, It is true that the observations made by the learned Judge quoted above were followed by following observations: "this however, does not mean that Section 20 of the Act will necessarily have no effect whatsoever on the suit pending in the instant revision. . . . . . . . . . . . " What the learned Judges seem to convey is that there are various other provi sions in the Act which make the provisions contained in Section 20 also rele vant in certain suits that were pending on 15-7- 1972 as well. For example in a suit for ejectment covered by Section 39 of the Act pending on 15-7-1972 if a tenant makes the requisite deposits within the prescribed time the provi sions contained in Section 20 sub-section (2) become relevant in deciding that suit, but then it is so because of the specific provisions contained in Section 39 of the Act. As explained above what Section 39 provides is that in respect of the building covered by that section if a tenant makes the necessary deposit within the;; time prescribed there for, he can take the plea that he should not be ejected from the accommodation except on any one of the grounds mentioned in clauses (b) to (g) of sub-section (2) of Section 20. It necessarily follows that if he fails to make the deposit he cannot raise such a plea, implying thereby that he is liable to be ejected in the normal course even if the grounds mentioned in clauses (b) to (g) of Section 20 (2) of the Act are not made out. This is quite different from saying that the case ?s covered by Section 20 or that Section 20 controls a suit which has been instituted prior to the commencement of U. P. Act No. 13 of 1972 and which is pending on the date when the Act came into force. In the case before me it is not disputed that the building in question, having been constructed in the year 1955, was a building covered by Section 39 of the Act, It is also not disputed that the tenant did not deposit the amount contemplated by that Section 39 in the Court trying the suit within the period prescribed there for. Accordingly, it did not become open to the tenant to contend that the suit which otherwise had to be taken to its logical conclusion should not be decreed unless one of the grounds mentioned in clauses (b) to (g) of Section 20 existed. All other pleas raised by the defendant having been repelled the plaintiffs suit should have been decreed. I now proceed to deal with various cases cited at the bar. The first case cited at the bar is the case of Ram Swaroap Raizada v. Dr. Madan Mohan Mista. 1974 A. L. J. 564 Learned counsel relied upon the observations made by Hon. K. C. Agarwal, J. in paragraph 19 of the judgment. A careful reading of the observations made by the learned Judge indicates that the crucial declaration made by him in respect of scope of Section 39 of the Act was that in a suit instituted before coming in the force of U. P. Act No. XIII of 1972 and pending on 15-7-1972 if grounds mentioned in Section 20 (1) of those mentioned in clauses (b) and (g) of sub-section (2) ware made out, the tenant would be liable to be ejected not withstanding that he deposited the entire rent and costs contemplated by Section 39 of the Act and that the submission mad: by the learned counsel to the contrary viz. that Section 39 would apply only to cases of those tenants who deposited the rent mentioned therein and to none others, was not borne out by the section. Whatever the learned Judge might have meant by saying that Section 39 of the Act was not confined to only such tenant what deposit ed the rent within the period mentioned therein, he certainly did not mean to lay down that even though the tenant, in a pending suit did not deposit the rent etc. within the stipulated period he was still entitled to claim that no decree for his ejectment should be passed excepting on grounds mentioned in Section 20 (1) or clauses (b) to (g) of Section 20 (2) of the Act. In the case of Mohan Lal Ombhar Singh 1979 U. P. Rent Control Cases 312 Hon'ble Mehrotra, J. observed thus: "a perusal of the nature of Section 39 of U. P. Act No. XIII of 1972 clearly shows that the provisions of the said section would apply to every suit for ejectment of a tenant from a building to which the old Act did not apply and which was pending on the date of the commencement of the U. P. Act No. XIII of 1972. The suit which had been filed by the appli cant was a suit for eviction of the opposite party in respect of premises to which, according to the finding record;d by the trial Judge, the provisions of the old Act did not apply. The suit was admittedly pending on the date when U. P. Act No. XHI of 1972 came into force. As such, the plaintiff applicant was entitled to a decree for ejectment against his tenant unless the tenant made the deposit envisaged by Section 39 and the case could be said to be let outside the ambit of the proviso to sub-section (1) of Section 20 or of Clauses (b) to (g) of Section 20 or of that section. It was, therefore, necessary for the Court below to have gone into question as to whether the tenancy of the defendant-opposite party had been validly terminated by a proper notice under Section 106 of the Transfer of Pro perty Act. . . . . . . . . . . . . . . . . . " The view expressed by Hon'ble V. K. Mehrotra, J. is fully in consonance with what I have stated above. Yet another decision brought to my notice is the judgment by Hon'ble K. C. Agrwal, J. in the case of Jagarnath v, Stnt. Shushila Devi Writ petition No. 3853 of 1979 decided on 2-1-1980. In that case the suit for ejectment filed by Smt. Shshila Devi was pending on the date when the U. P. Act No. XIII of 1972 came into force. The Judge Small Cause Court held that the building in dispute had been constructed in the year 1965 and that the tenant did not deposit the amount required by Section 39 within the stipulated time. He, therefore, held that the tenant was, not entitled to any protection and dismissed the suit filed by the landlord for his ejectment. In writ petition K. C. Agarwal, J. relying upon the Supreme Court in the case of Ratan Lal v. Murti Devi ($)r held that the provisions laid down in Section 20 (2) of the U. P. Act No, XIII of 1972 being prospective did not preclude the building in question falling within the ambit of U. P. Act No. XIII of 1972 and as such the provisions of the Act were applicable to it. He then went on to observe that as the provisions of Act were appli cable to the said building and as it had not been shown that any ground men tioned in Section 20 of the Act was made out the suit for ejectment was liable to fail. Although the point with regard to non-deposit of the amount under Section 39 of the Act was made out before the Judge Small Cause Court, it does not appear to have been relied upon by any of the two-parties before this Court. As any reference or discussion about the effect of the provisions contained in Section 39 is conspicuous by its absence in the judgment of the learned Single Judge, I am not prepared to read this judgment as laying down any thing contrary to what, according to me, is the correct legal position. In view of the aforesaid discussion, the petition succeeds and is allowed. The order dated 18-1-1979 passed by the 1st Additional District Judge, Kanpur is quashed and that passed by the Judge Small Causes Court on 1-5-1975 is restored. In the circumstances, I direct the parties to bear their own costs. .