BIJAI BAHADUR Vs. MAHABIR PRASAD

JUDGEMENT

(1.) This is an application Under Sec. 40 read with Sec. 39 of the U.P. Act 13 of 1972 made by the Defendant Appellant on 4 -8 -1972 before the Application Judge praying that this Court may be pleased to decide the appeal in terms of the provisions of Sec. 39/40 of the U.P. Act 13 of 1972 and pass such other and further order which the Hon'ble Court may deem fit. In the application, paragraph 13, the Defendant Appellant stated that since the entire amount has been paid or deposited in the court below no amount of interest is liable to be paid, but if this Court was of the view that the Plaintiff -Respondent was entitled to interest also notwithstanding the making of the deposit in the court below, the Appellant would be willing to comply with any order passed by the Court. It appears from the affidavit filed in support of the application that in the court below the Defendant Appellant has been depositing the rent every month and has deposited also the decretal amount and costs. It is not made dear in the affidavit in which court the rent has been deposited every month and in what circumstances. I can presume that the decretal amount and the costs must have been deposited in the court where the suit was filed. The Applicant seems to think that having deposited the decretal amount and the costs and having further deposited the rent every month thereafter, he was not liable to pay any interest and awaits the order of the Court for it. This the Applicant has done on his own risk. If the Applicant wanted to take the benefit of the provisions of Sec. 40 read with Sec. 39 of the U.P. Act 13 of 1972, he has to pay an interest at 9 on all the amount due up to date to the Plaintiff -Respondent. Even if this Court passes an order today directing the Defendant -Appellant to deposit the nine per cent interest, that deposit would be beyond one month of the date of the commencement of the U.P. Act 13 of 1972 and will not be covered by the provisions of Sec. 39 of the said Act. The Applicant thus having failed to comply with the provisions of Sec. 39 of the said Act is not entitled to any decision from this Court in terms of that section.

(2.) There is yet another circumstance against the Defendant Appellant disabling him from taking the benefit of Sec. 39 of U.P. Act 13 of 1972. He has not made the deposit in this Court where the appeal arising out of the suit for his eviction is pending. It appears from the order of the learned Application Judge while issuing notice on this application on 11 -8 -1972 that the deposit was permitted to be made in the court below subject to decision in regard to the Appellant's right to make the deposit in the court below and its effect on the Appellant's right claimed Under Sec. 39 of the said Act. Thus the Defendant Appellant cannot take advantage of the fact that this Court passed an order permitting him to make the deposit in the court below as that order was not final as to his rights. I think the deposit has to be made in the court where the appeal is pending or revision is pending and not in any other court. Sec. 40 of the Act says that where an appeal or revision arising out of a suit for eviction of a tenant from any building to which the old Act did not apply is pending on the date of commencement of the Act, it shall be disposed of in accordance with provisions of Sec. 39 which shall mutatis mutandis apply. Sec. 39 of the said Act envisages a case for deposit during the pendency of a suit and it says that the deposit shall be made in the court in which the suit for eviction of a tenant from any building to which the old Act did not apply is pending. The rule of mutatis mutandis would then mean that the deposit will have to be made in the court in which the appeal arising out of a suit for eviction of a tenant from any building to which the old Act did not apply is pending No deposit of any kind admittedly has been made by the Defendant Appellant in the High Court where an appeal arising out of a suit for eviction of the Defendant from a building is pending.

(3.) The application is rejected and I proceed with the hearing of the Defendant's appeal on merits.