HARIHAR NATH PANDEY Vs. DINESH NARAIN

JUDGEMENT

(1.) WHEN this second appeal came up for hearing before a learned Single Judge he was of opinion that it gave rise to questions of law which needed adjudication by a larger bench principal of then being if benefit of Sections 39 and 40 of U.P. Act No. XIII of 1972 could be availed of in tenant's appeal if deposit In executing court could be taken into account and whether any shortage or deficiency in the deposit prevented the tenant from availing of benefit contemplated in these sections.

(2.) IT has been found by the two courts below that rent of premises was Rs. 30/ -. And the Appellant had not paid rent for more than three years. But the suit was decreed for Rs. 1080/ - only. Rest was held to be time barred. Interest at the rate of four percent was also allowed. During pendency of first appeal bank account of Rs. 5100/ - of the Appellant was got attached. The Appellant further deposited a sum of Rs. 360/ - in the court of Civil Judge. When the second appeal was admitted in this Court ejectment of the Appellant was stayed subject to the condition that he deposited the entire decretal amount and continued to deposit monthly rent. In pursuance of this order Appellant deposited Rs. 90/ - on 9th March, 1972, Rs. 90/ - on 9th April, 1972, Rs. 1590/ - on 28th April, 1972 and Rs. 90/ - on 6th July, 1972. Prior to this a sum of Rs. 1942/ - had been paid to Respondent No. 1 on 14th February, 1970 out of Rs. 5100/ - which had been attached under Order 38 Rule 5 Code of Civil Procedure. The Respondent moved an application in executing court that as Appellant had not complied with conditions of interim order passed by this Court, the order stood vacated. It was contested by the Appellant and on 21st July, 1972 he deposited a sum of Rs. 105.50 towards costs of lower appellate court and Rs. 100/ - in addition to it to cover up other deficiency, if any. Thus a sum of Rs. 4162 was in deposit before 15th July, 1972. And by 21st July, 1972 the deposit was Rs. 4367.50.

(3.) ONE of the doubts which impelled the Hon'ble Judge to refer this appeal was if benefit of Sections 39 read with Section 40 could be availed of by a tenant after decree for ejectment had been passed. The Hon'ble Judge felt that applicability of Sections 39 and 40 was limited to an appeal filed by a landlord from decree of dismissal in a suit for eviction as Section 39 did not provide that a decree for ejectment shall be set aside. Section 39 permits a tenant against whom a suit for eviction from a building was pending to which the old Act did not apply to deposit the entire amount of rent and damages together with nine percent interest and full costs of suit within one month from commencement of the Act or from the date of knowledge of the pendency of suit. And if this was done then the court before which the suit was pending was debarred from passing a decree for eviction except in circumstances mentioned therein. Section 40 extended this benefit to appeal or revision. It provides that if any appeal or revision was pending, it shall be disposed of in accordance with the provisions of Section 39 which shall mutatis mutandis apply. 'These are beneficent provisions enacted in furtherance of the objective, to provide, in the interest of general public, for the regulation of letting and rent of, and, the eviction of tenant from certain classes of buildings situate in the urban areas ; admits of no doubt. Such legislation has to be interpreted liberally to achieve the purpose of its enactment. The intention to provide immunity from eviction if the tenant was willing to compensate the landlord by depositing not only arrears of rent but interest and cost is not only manifest but expressed unequivocally. It is in this background that the controversy whether benefit of Section 40 is available in a tenant's appeal has to be examined. It cannot be disputed that in a case where tenant complies with conditions laid down in Section 39 then there is complete embargo on power of court by preventing it from passing decree for eviction. The same immunity continues in appeal or revision as provisions of Section 39 have been applied mutatis mutandis to Section 40. It is settled beyond dispute that appeal and revision are continuation of the suit. Therefore when tenant's second appeal is dismissed it is the suit of landlord which is decreed. Although it is the decree of trial court which is affirmed but it results in passing of a decree for eviction in second appeal. And that under law is prohibited by Sections 39 and 40 in circumstances mentioned therein. Therefore benefit of Section 39 and 40 is available to a tenant in his appeal even. Even otherwise the language of Section 40 does not warrant such narrow interpretation. The expression is very wide. It applies to every appeal or revision. It does not confine its applicability to appeal of landlord only. Moreover, if such construction is placed it shall result in frustration of objective of its enactment.