SHAMIM HASHMI Vs. ADDL DISTRICT JUDGE ALLAHABAD

JUDGEMENT

(1.) This is a tenant's writ petition filed against a judgment of the Additional District Judge, Allahabad dismissing his revision preferred under Section 25 of the Provincial Small Cause Courts Act. The dispute in the present case is with respect of a shop of premises No. 125, Chak, Allahabad, owned by Hafiz Mohammad Ibrahim, respon dent 3. Initially the house was purchased by Amanat Ullah on 30- 7-1968. After obtaining the sanction of the plan from the Nagar Mahapalika, Amanat Ullah raised some constructions. Thereafter, the disputed shop was let out to Respondent 3 on a monthly rent of Rs. 40/ -. On July 25, 1969, Amanat Ullah sold the entire building, including the shop in dispute, to Hafiz Mohammad Ibrahim. Hafiz Mohammad Ibrahim filed suit No. 446 of 1973 in the Court of the Judge Small Causes for ejectment, recovery of arrears of rent and damages against the petitioner, claiming that the peti tioner since had not paid the rent for the period from 1-4-1972 to 21-4-1973, despite the service of notice of demand on 23-3-1973. Respondent 3 claimed that the notice, which had been taken to the petitioner, had been returned back with the following endorsement of the post office: "lene se inkar kiya". The suit was contested by the petitioner. He denied that he had refused to accept any notice and claimed that as Respondent 3 had illegally refused to accept the money orders, the rent for the period from 1-4-1972 to 31-7-1973 was deposited under Section 30 (1) of U. P. Act XIII of 1972. The petitioner also claimed that since the house had been constructed in 1969, respondent 3 could not get a decree unless he had established one of the grounds stated in Section 20 of U. P. Act XIII of 1972 for ejectment. The suit was transferred to the Munsif on 11-12-1973. It may be noted that before this date, the petitioner, had already filed the written statement on 10-10-1973. before the Judge Small Causes. The Munsif framed issues on 17-8-1974 Thereafter, the suit remained pending till January 1978, on which date on an application filed by Respondent 3, the Munsif held that the suit was of a small cause Court nature and, as such, the same was liable to be transferred to the small cause Court side. Consequent upon the aforesaid order, the suit was transferred to the Judge Small Cause Court. Issues were thereafter re-framed on 16-8-1978. The Judge Small Cause Court decreed the suit on 4-9-1978 holding that the building had been reconstructed in pursuance of the plan sanctioned in September 1968 and as the first assessment of the said building was made in the year 1969, the same was liable to be treated as having been built in October 1969 under Section 2 (2) of U. P. Act XIII of 1972. According to him, since the building had been constituted in 1969, U. P. Act XIII of 1972, did not apply. The Judge Small Causes, however, held that the respondent 3 had served a composite notice of demand and termination of tenancy on the petitioner, and that the same had been refused on 23-3-1973. Against the aforesaid judgment and decree of the Judge Small Cause Court, a revision was filed under Section 25 of the Provincial Small Cause Courts Act. The revision was dismissed. Hence, the writ. The first question that was raised by the learned counsel for the petitioner was that even if the building had been constructed in 1969, the suit could not be decreed unless respondent 3 had made out one of the grounds of ejectment stated in Section 20 of U. P. Act XIII of 1972. Counsel urged that sub-section (2) of Section 2 of the said Act was prospec tive and the exemption clause could be applied only to buildings which were made after the enforcement of the Act. Sub-section (2) of Section 2 reads as under: "except as provided in sub-section (5) of Section 12. sub-section (1-A) of Section 2, sub-section (2) of Section 24, Section 24-A. 24-B, 24-C or sub-section (3) of Section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed. " The holiday of ten years given was, according to the petitioner's counsel, only to those buildings which had been made before the enforcement of the Act. What follows from the submission is that all the constructions which had been completed before the 15th of July, 1972, were covered by this Act The view of this Court, however, was that the benefit of Sub-section (2) of Section 2 was not only available to the constructions made after the enforce ment of the Act for ten years but also to those which had been made within ten years of the enforcement of the said Act. This view had been taken in a number of cases decided by this Court and subordinate Courts. In Ratan Lal v. Smt. Marti Devi 1979 (5) A. L. R. , 595 the Supreme Court has held that sub-section 2 of Section (2) was prospective and was meant to be applied only to buildings constructed after the enforcement of the Act. To buildings made before the Act, Section 2 (2) was not available. Therefore, the learned counsel for the petitioner is right in saying that in the present case also respondent 3 could not succeed unless one of the grounds stated in Section 20 had been made out. In the instant case, the suit had been filed on the allegation that the petitioner was in default for a period from 1-4-1972 to 21-4-1973, and that the petitioner had not paid the same within a period of one month despite the service of notice. The petitioner did not deny that the rent had not been paid. He, however, stated in the written statement that the notice had not been served. The two Courts below concurrently held that the notice had been taken to the petitioner, but had been refused by him. Refusal of the notice would be deemed to be sufficient compliance of law. Linked with the above, the next question was whether the petitioner was in default. The case of the petitioner appears to be that he had remitted the rent to Respondent 3 on two occasions before the service of notice, and that the money orders had not been accepted. One of the money orders had been sent covering the rent for the months of April and May 1972, and the second was also in respect of these very months. The petitioner stated that thereafter a money order of Rs. 480/- was sent to respondent 3 on 12-5-1973. I have already pointed out above that the notice had been served on the petitioner on 23-3-1973. Under Section 20 (2) (a), the petitioner was required to send the rent within one month from the date of the service upon him of the notice of demand. He did not do so. Accordingly, the remittance of rent on 12-5-1973 could not come to his rescue. Thereafter, the petitioner deposited the rent under Section 30 of U. P. Act XIII of 1972. These deposits would also not be of any consequence inasmuch as the petitioner had already committed a default within the meaning of Clause (a) of Section 20 (2) of U. P. Act XIII of 1972. Counsel, however, next urged that under sub-section (4) of Section 20, the petitioner had a right to deposit the rent on the first date of hearing and as the deposit was made by him before the issues were re-framed by the Judge Small Causes on 16-8-1978, the petitioner was entitled to be relieved against his liability for eviction. The submission is devoid of substance. In this case, issues had already been framed by the Munsif on 17-8-1974. On that date the rent had not been deposited. The deposit of rent by the petitioner, on 16-8-1978 could not entitle him to get the benefit of Section 20 (4) of the Act. Far availing the benefit of Section 20 (4 ). It is necessary that the tenant unconditionally pays the entire amount of rent and damages for use and occupation together with interest thereon 9% at per annum and the landlord's costs of the suit in respect thereof. The expression "first hearing" means the date of framing of issues. As the deposit had not besa made on the date of framing of the issues, the petitioner is not entitled to the benefit of Section 20 (4 ). Counsel urged that since the Munsif had no jurisdiction to entertain the suit and as the plaint had been subsequently returned, the liability to deposit for getting the benefit of Section 20 (4) did not arise till the plaint had been returned to the proper Court. The submission is not correct. Under sub-section (4) of Section 20, a tenant can be relieved against his liability for ejectment on the ground of having deposited the amount on the date of first hearing. It is not material whether the Court in which the suit had been filed had jurisdiction to entertain it or not. Moreover, the suit had been filed before the Judge Small Causes. On 16-8-1978 only issues had been re-cast and amended by the Judge Small Cause Court and, therefore, the argument of the petitioner's counsel that this should be considered to be the date of first hearing, is not acceptable. The date on which the issues had been framed earlier was the date of ''first hearing" and not the date on which the issues had been amended. The next argument was that the petitioner was also entitled to the benefit of Section 39. Counsel urged that according to the view of this Court, the Act became applicable to the shop in dispute in 1979, and since the entire deposit had been made in accordance with the requirement of Section 39, the decree for ejectment is liable to be set aside. Section 39 applies to suits whereas Section 40 applies Section 39 to an appeal or revision arising out of a suit for ejectment of a tenant from any building to which the Act did not apply and which was pending on the date of com mencement of this Act. The argument was solely based on Section 40 of the Act. This Section does not apply to a writ proceeding. It applies only to an appeal or revision. Hence, the petitioner will not be entitled to get the benefit of Section 39. It is not possible to apply Section 40 to a writ petition inasmuch as the said section does not speak of it. To read these words in Section 40 would amount to legislation. It has been said over and over again that the Court must not undertake to make the legislature say what it has not said. Counsel's submission that Section 40 could be interpreted as including writ petition, although these words are not written in that section, is not correct. The interpretation is the process by which a Judge constructs from the words of a statute a meaning which he either believes to be that of legisla ture, or which he proposes to attribute to it. A Court cannot either write or read words which are not to be found in the statute. For these reasons, the writ petition is dismissed with costs payable by the petitioner to Respondent 3. The petitioner is, however, granted three months' time to vacate the premises. .