PHOOLWATI Vs. GYAN CHAND VERMA

JUDGEMENT

(1.) AS a puisne Judge I had directed that the papers of this case be laid before Hon'ble the Chief Justice for constituting a larger Bench to decide the same. By a quirk of fortune it has now come to me as the Acting Chief Justice of this Court to refer the case for hearing to this Bench of which I also happen to be a member.

(2.) THE salient facts giving rise to this writ petition are that the petitioner filed a suit for eviction of Gayn Chand, respondent No. 1, on the ground of default in payment of rent, sub-letting and renunciation of his character as tenant. THE suit was decreed by the Judge, Small Cause Court on 22-7-1975. THE tenant-respondent preferred SCC Revision No. 81 of 1975 which was dismissed by the revisional court on 19-8-1976 and the decree for eviction and arrears passed by the trial court was upheld. THE tenant thereafter went in revision to the High Court and the impugned order was quashed on 12-7-1978 and the case was remanded for fresh consideration of the question as to whether the tenant was entitled to the benefit of Section 39 of U. P. Act No. 13 of 1972 (hereinafter referred to as the Act).

(3.) IT was, therefore, contended that assuming that the costs awarded in the revision arising out of an interlocutory order were not deposited, that could not be considered as a case of absence of deposit in accordance with section 40. In the instant case Revision No. 9 of 1971 was decided on 8-8-1972 and costs were awarded. Curiously enough, on the same date i. e. 8-8-1972 the respondent-tenant had deposited rent, costs of the suit and interest etc. but according to the petitioner the costs awarded in Revision No. 9 of 1971 were not deposited. On the other hand, it was pointed out on behalf of the respondent-tenant that these costs were not included in the decree passed in the suit. The Court asked for a report in this case from the District Judge, Muzaffarnagar who submitted a reply stating that the costs awarded in Revision No. 9 of 1971 were not shown in the decree of SCC Suit No. 913 of 1969 Smt. Phoolwati v. Gyan Chand. Two contentions were raised on behalf of the respondent-tenant. Firstly, it was submitted that according to the ratio of Kamta Prasad's case (Supra) such costs of the revision could not be legally included in the deposit contemplated by section 40 of the Act. Secondly, on facts also according to the respondent-tenant the position was that the amount deposited by the respondent tenant on 8-8-1972 actually covered the costs of Revision No. 9 of 1971 as well.