BANARASI LAL Vs. SAGIRAN BEGUM

JUDGEMENT

(1.) THIS second appeal by the tenant arises out of suit for ejectment filed in April, 1969 on the ground that the construction in question was raised some time in 1956 -57 and, as such, the earlier Act, U.P. Act No. 3 of 1974 was not applicable in respect thereof. The suit was decreed on 19 -8 -1971 and while the appeal was pending before the Civil Judge, Bijnor, U.P. Act No. 13 of 1972 was enforced with effect from 15 -7 -1972. It is alleged that taking advantage of the provisions of Section 39 read with Section 40 of the new Act, the entire amount payable was deposited in Court of appeal on 19 -7 -1972 and thus the Defendant -Appellant was absolved from his liability for eviction from the disputed premises. It would be significant to note that under the trial Court decree costs were made easy, and no amount of cost was awarded in favour of the Plaintiff Respondent.

(2.) THE lower appellate Court confirmed the findings of the trial Court as regards the year of construction and on the cross -objection filed by the Plaintiff Respondent reversed the findings of the trial Court which had made the cost easy in the suit. It was directed that the Plaintiff would be entitled to her costs from the Defendant -Appellant.

(3.) THE undisputed position of the case appears to be that rent upto 31st of July, 1972 had already been deposited by the Defendant Appellant in the Court below on various dates, the last payment having been made on 19 -7 -1972. Subsequently on 7 -8 -1972, Rs. 118/ - on account of rent for August, 1972 and Rs. 42/ - by way of cost of appeal had been deposited on that date. One of the points urged before the Court below was that since the Plaintiff had also filed a cross -objection, its cost had also to be included in the deposit. This contention was repelled and I think rightly. The provisions of Section 39 and Section 40 of U.P. Act 13 of 1972 do not make any reference that the cost of the cross -objection or cross -appeal are also required to be deposited in order to get benefit under these Sections. Mainly the dispute raised in the Court below was that the Defendant had not deposited full costs of the appeal and had further failed to deposit the cost of the suit. This plea of the Plaintiff was accepted by the Court below but is being challenged before me in Second Appeal.