DINESH CHANDRA GUPTA Vs. KASHI NATH SETH

JUDGEMENT

(1.) This first appeal from Order arises from a suit filed by the landlord-respondent for ejectment and recovery of arrears of rent against the tenant-appellant, in consequence of an order disentitling the latter to the benefit of Sec. 39 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (to be hereinafter referred as the Act) in respect of an accommodation not falling within the United Provinces (Temporary) Control of Rent and Eviction Act, 1947, but to which the Act it is the common ground became applicable during the pendency of the suit.

(2.) Shortly stated, the facts, in so far they are relevant for the purposes of the present, are these : the suit was filed on 6th Aug., 1970, with the averment that the defendant was the tenant on a monthly rent of Rs. 40.00, when tenancy had been determined by a notice to quit. While the suit was pending, the Act came into force with effect from 15th July, 1972. The tenant made an application on 25th July, 1972 for relief under Sec. 39 of the Act, tendering, at the same time, a sum of Rs. 2,509/- and odd split into various items, namely, the arrears of f rent from 1st July, 1968 to 9th Feb., 1970, damages for use and occupation from 10th Feb., 1970 to 25 July, 1972, costs of suit (excluding lawyers fee) and interest calculated at 9% per annum on the entire amount of arrears of rent and damages for use and occupation. The landlord resisted the application mainly on the grounds that lawyers fee in a sum of Rs. 100.00 had not been deposited and the amount of interest was also short of the required amount. The trial court after hearing the parties found that the shop was constructed in the year 1952 bringing the accommodation within the ambit of the Act and about I the deposit made under Sec. 39 it took the view that the lawyers fee in the absence of a certificate filed by the plaintiff could not be taken to be the costs of the suit. Finding a deficiency of Rs. 10.00 and odd in the deposit made, the court directed the defendant to make up the deficiency, it dismissed the suit for ejectment under Sec. 39 of the Act. The lower appellate court set aside the order for two reasons; First, that the trial court was not correct in directing the defendant to make up the deficiency after the expiry of the period prescribed under Sec. 39 from the date of the commencement of the Act, and secondly, the full costs of the suit should mean costs incurred by the landlord as the pleaders fee, not withstanding the fact that the lawyers certificate had not been filed by the time the application under Sec. 39 was made. In consequence, the application was rejected and the case was sent back to the trial court to dispose of it afresh in accordance with law.

(3.) Feeling aggrieved from that order, the tenant has come up in appeal before this Court and at the very threshold, in order to determine the correctness of the rival contentions between the parties, it would be necessary to have a look at Sec. 39 of the Act which is in the following words :