SITA GOEL Vs. FIFTH ADDL DISTRICT JUDGE MEERUT

JUDGEMENT

(1.) The petitioners are the tenants of a building of which respondent No. 2, Smt. Shakuntala Devi is the landlord. Respondent No. 2 filed a suit in the Court of the Judge, Small Causes, Meerut, against the peti tioners for their ejectment from the aforesaid building after terminating their tenancy by serving a notice under Section 106 of the Transfer of Property Act on the ground that the petitioners were in arrears of rent for not less than four months and had failed to pay the same to her within one month from the date of service upon them of a notice of demand and consequently they were liable to be evicted in view of Section 20 (2) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act ). The suit was contested by the petitioners on several grounds including the ground that they were entitled to be relieved against their liability for eviction inasmuch as they had made the necessary deposit contemplated by Section 20 (4) of the Act. The Judge, Small Causes, dismiss ed the suit filed by respondent No. 2 on January 14, 1974, on the ground that the entire amount contemplated by Section 20 (4) of the Act had been deposited by the petitioners at the first hearing of the suit. Against that order respondent No. 2 filed a revision which was allowed by the IV Additional District Judge, Meerut, on 2nd August, 1975, on the ground that the amount deposited at the date of the first hearing did not represent the entire amount contemplated by Section 20 (4) of the Act and consequently the petitioners were not entitled to the benefit of the said sub-section. Since the other pleas raised in defence by the petitioners in the suit had not been decided by the Judge, Small Causes, the Additional District Judge remanded the suit for deciding it afresh. After remand the Judge, Small Causes, decreed the suit for ejectment of the petitioners as also for arrears of rent and a mesne profit on the find ing that the petitioners committed default in payment of arrears of rent within the meaning of Section 20 (2) of the Act and that the notice served on them was valid. The petitioners filed a revision against that order which was allowed on 18th May, 1976, by the VIII Additional District Judge, Meerut, who remanded the case back for deciding it afresh after permitting respondent No, 2 to make necessary amendments in the plaint and giving the petitioners an opportunity of filing an Additional written statement. When the case went back to the Judge, Small Causes, after this second order of remand counsel for the petitioners as it is apparent from the order dated ?0lh October, 1976, a copy whereof has been filed as Annexure 3 to the writ petition made a statement that he did not want to contest the suit on any ground and only prayed that the petitioners may be relieved against their 'liability for eviction, they having made the necessary deposits con templated by Section 20 (4) of the Act. It is further apparent from the observation made in the paragraph preceding the operative part of the order that it was admitted that the petitioners had committed default and that the notice was quite legal. The date of first hearing of the suit for purposes of making the deposit under Section 20 (4) of the Act has been found to be 21st November, 1973. The Judge Small Causes, has recorded a finding that the amount deposited by the petitioners at the first hearing of the suit fell short by Rs. 71. 25 of the amount which ought to have been deposited under the said sub section (4) of Section 20 in order to entitle the petitioners of being relieved against their liability for eviction. He has, however, taken the view that out of the aforesaid amount of Rs. 71. 25 a sum of Rs. 55/-was paid in Court to respondent No. 2 on 14th January, 1974, which was the date of final hearing and even though there was still a balance of Rs. 16. 25 the petitioners were entitled to the benefit of Section 20 (4) of the Act inas much as they had substantially complied with the requirements of the said sub-section. On this view the suit for ejectment was dismissed giving the petitioners the benefit of Section 20 (4) of the Act. Aggrieved by that order respondent No. 2 preferred a revision under Section 25 of the provincial Small Cause Courts Act before the District Judge which has been allowed by respondent No. 1 on 28th November, 1979, and it is this order passed by respondent No. 1 which is sought to be quashed in the present writ petition. It was urged by counsel for the petitioners that the Judge, Small Causes rightly gave the benefit of Section 20 (4) of the Act to the petitioners on the ground that they had made substantial compliance of the said sub-section and that since in taking this view the Judge, Small Causes, had relied on a decision of this Court in D. C. Gupta v. K. N. Seth 1976 A. L. J. 124 respondent No. 1 has committed a manifest error of law in setting aside the order of the Judge, Small Causes. I, however, do not find any substance in this submission. Respondent No 1 in passing the impugned order has taken into consideration D. C. Guptas case (supra) and has held, and in my opinion rightly, that the said case was distinguishable on the facts of the instant case. In D. C Gupta's case the provision which came up for consideration was Section 39 of the Act and not Section 20 (4) thereof. It was held that where a tenant had made the deposit in substantial compliance with Section 39 but due to some accidental omission or clerical error the amount fell short of the required amount the trivial error should not be visited with denying the relief to him against eviction conferred upon him by the Act. After having considered the facts of the instant case respondent No. 1 has held that even if the princi ples laid down in D. C. Gupta's case were applied to a case under Section 20 (4) also the petitioners were not entitled to any benefit inasmuch as in the instant case there was no evidence at all to show that there was any accidental omission or clerical error in not making the deposit of the entire amount contemplated by Section 20 (4) of the Act. This finding recorded by respon dent No. 1 does not suffer from any such error which may under Article 226 of the Constitution. Further even after considering the decision in D. C. Gupta's case (supra) it was held in Natthoo v. II Addl. District Judge 1981 (U. P.) 1 R. C. C. 87, that if the amount deposited by the tenant fell short of the requirement of Section 20 (4) of the Act he could not be relieved of the liability of eviction on tie ground men tioned therein. In taking this view, reliance was placed on two earlier deci sions of this Court in Rameshwar Prasad v. Sardar Boota Singh 1976 ALL I. R. C. J. 594 and Yugal Kishore v. Radhey Shyam 1978 (U. P.) R. C. C. 308. The matter can be looked into from another aspect. As already pointed out above the petitioners had been given benefit of Section 20 (4) of the Act by the then Judge, Small Causes, on 14-1-1974 and on a revision filed by respondent No. 2 the IV Additional District Judge had by his order dated 2nd August, 1975, set aside that order holding that the petitioners were not entitled to the benefit of Section 20 (4) and had remanded the suit for deci sion afresh as other points raised in defence by the petitioners had not been decided by the Judge, Small Causes. In Satya Dhyan v. Smt. Deorajin Devi 1960 S. C. 941, it was held that the principle of res judicata applies also as between two stages in the same litigation to this extent that a Court whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of ths same proceedings. In this view of the matter the Judge, Small Causes committed not only a manifest error of law but really an error of jurisdiction in permitting the petitioners to claim the benefit of Section 20 (4) again notwithstanding the finding recorded by the Additional District Judge referred to above and in recording a finding contrary to the finding of the Additional District Judge by the order which has been set aside by respondent No. 1 by the impugned order. It was then urged that even if the petitioners were not entitled to the benefit of Section 20 (4) of the Act no decree for their ejectment could be passed unless a finding was recorded by respondent No. 1 that the petitioners were in default in the matter of payment of arrears of rent within the mean ing of Section 20 (2) (a) of the Act and that the notice served upon the petitioners was valid. Reliance was placed on a decision of the Supreme Court in Ram Deo v. Umrao Singh AJ. R. 1980 S. C. 323 where dealing with Section 3 (1) (a) of the U. P. (Temporary) Control of Rent and Eviction Act, 1947, it was held that in order to make out a ground for eviction under the said section the landlord must establish three facts (1) that the tenant was in arrears of rent, (2) that such arrears are of rent for more than three months, and (3) that the tenant had failed to pay the same to the landlord within one month of the service on him of the notice of demand, and if anyone of these factual ingredients was not established, no order for eviction could be passed. The submission made by counsel for the petitioners in this behalf cannot be accepted for two reasons. Firstly, as already seen above after the sun bad been remanded on the first occasion by the Additional District Judge by his order dated 2nd August, 1975, the Judge, Small Causes, by his order dated 5th December, 1975, had decreed the suit on the finding that the petitioners had committed default in payment of arrears of rent within the meaning of Section 20 (2) (a) of the Act and also that the notice served on them was valid. When the matter was taken up after the second order of remand the counsel for the petitioners, as already pointed out above, made a categorical statement that he did not want to contest the suit on any ground and claimed that the petitioners may be relieved against their liability of eviction under Section 20 (4) of the Act and that it was admitted that the petitioners had committed default and the notice was quite legal. After this statement there was no occasion left for respondent No. 1 to record any finding on any of these two points. The impugned order cannot, therefore, be quashed on this ground either. No other point has been pressed. In the result the writ petition fails and is dismissed but there will be no order as to costs. The petitioners are given one month's time to vacate the building in question. .