RAM GOPAL Vs. HARI SHANKER

JUDGEMENT

(1.) Heard Sri S. P. Srivastava for the Appellant and Sri S. Dhawan for the respondent. The matter relates to tenancy, The suit was filed against the present appellant for his ejectment as tenant On the basis that the disputed accom modation was a part 1950 construction and the defendant was liable to ejectment as his tenancy had been terminated. Default was also alleged in the alternative. The learned trial court decreed the suit for ejectment holding that the disputed constructions were not covered by the provisions of U. P. (Temporary) Control of Rent and Eviction Act, 1947. An appaal was filed by the tenant. During the pendency of the appeal the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 was enforced from 15th July, 1972. An applica tion was moved by the tenant before the Court below on 14th August, 1972, i. e. which one month of the commencement of the Act along with a deposit claiming the benefit of Section 39 of the later Act. Accord ing to the defendant he had deposited the entire rent, costs, mesne profits and interest at the rate of 9% per annum in respect of arrears. He had also claimed that after the notice for ejectment was given he had deposited rent for seven months, i. e. Rs. 280/- under Section 7-C of U. P. (Temporary) Control of Rent and Eviction Act, 1947. The trial Court had directed that the amount be adjusted towards the arrears and the defendant need not withdraw the same and repay to the landlord. The lower appellate Court after considering the question of deposits, held that the deposits including the amount deposited under Section 7-C of U. P. (Temporary) control of Rent and Eviction Act was sufficient to cover the entire arrears, costs and interest. In that view of the matter the suit for ejectment was dismissed, and the plaintiff was directed to withdraw the amounts deposited in Court as well as in proceedings under Section 7-C the old Act. The landlord has come up In this appeal. The learned counsel for the appellant argued that as the deposits under Section 7-C of the U. P, (Temporary) Control of Rent and Eviction Act were invalid, they could not be adjusted by the lower appellate court to wards dues required to be deposited under Section 33 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act. 1972. Apparently his argument appears to be correct. Once the deposit under Section 7-C, U. P. (Temporary) Control of Rent and Eviction Act was found to be invalid, the defendant could not get any benefit out of it. The learned counsel argued that the Courts below have concurrently held that provisions of U. P. (Temporary) Control of Rent and Eviction Act were not applicable to the disputed accommodation. Consequently no deposit could be made under Section 7-C of U. P. (Temporary) Control of Rent and Eviction Act. The second argument of the learned counsel was that the deposit was invalid as the conditions permitting the deposit were not satisfied. So far as the second objection is concerned, that only seeks to challenge the vali dity of the deposit assuming that the provisions of U. P. (Temporary) Control of Rent and Eviction Act, 1947 applied to the case. However, the first objection goes to the root of the deposit. As the U. P. (Temporary) Control of Rent and Eviction Act was not applicable to the accommodation, no provision of that Act including Section 7-C of U. P. (Temporary) Control of Rent and Eviction Act could be invoked and the deposit could be wholly without jurisdiction and void. The learned counsel for the respondent has relied upon a case, reported in F978, U. P. Rent Control Cases on page 321. Murli Dhar v. Smt. Ram Pyari. The learned Single Judge, who decided this case, held that any deposit made under Section 7-C of U. P. (Temporary) Control of Rent and Eviction Act was available for adjustment of the due under Section 39 of the U. P. Urban Buildings (Regulation) of Letting Rent and Eviction) Act. I am unable to agree with the case aforesaid for two reasons. Firstly section 39 of the U, P. Urban Buildings (Regulation of Letting Rent and Eviction) Act contemplates the application only to such cases where the provisions of 'old Act' were not applicable. Incase the 'old Act' applied, Section 39 would have no application. The second reason is that the section requires "deposit in the Court Befor which the sute is Pending". Admittedlv the deposit under Section 7-C of U. P (Tampary) Control of Rent and Eviction Act has not been made in the Court in which the suit was pending The case of Mathura Devi V. Kailash Chand Bhaatia, renorted in 1977 (2) Rent Control Journal 4 dealsi only with the object of Section 39 and not the validity of deposits made under Section 7-C. In that case the deposits were made in the trial Court. Benefit of section 39 read with Section 40 U. P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act was sought in revision in High Court. The following was held in para 18 of the report, "incase in hand the deposits were made by the defendant in order to satisfy the rent, damages etc. aimed by the plaintiff in the suit and surely the defendant had a legal to deposit those amounts in Court during the pendency of the suit or at revisions stage, provided that they were within the period stipulated by Section 39 of the Act. " In our case the defendant had no right to make the deposit in ques tion under Section 7-C. Consequently in my opinion the deoosit does not come under Section 39 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act and could not be considered. The learned counsel for the appellant further aruged that in case such deposits are considered, then deposit made in any other account would also be available to the defendant for acquiring benefit under Section 39 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act. As I do not agree with the learned Single Judge, who decided the case of Murli v. & Smt. Rampyari (1918 U. P. R. C. C 321 ). I refer the following question for decision by a Larger "whether the deposit made under Section 7-C of the U. P. (Tempo rary) Control of Rent and Eviction Act, 1947 could be adjusted under Section 39 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 inspite of the finding that the provisions of U. P. (Temporary) Control of Rent and Eviction Act, 1947, were not applicable to the accommodation and the deposits were illegal ?". Let this record be placed at an early date before Hon'bje the Chief Justice for constituting a Larger Bench for decision of the question. .