DEEP CHAND Vs. BABU RAM

JUDGEMENT

(1.) THIS a defendant's appeal and arises from a suit for ejectment from a shop and for damages for use and occupation which was filed against him by the respondent Babu Ram. The plaintiff-respondent's case was that the shop was let out to the appellant for a fixed period of one year on an annual rental of Rs. 1000/- which was paid in advance. The appellant's tenancy came to an end on 1st September, 1970 and yet the appellant did not vacate the shop and continued to remain in possession wrongfully. There was thus a claim for damages for use and occupation from 2-9-1970 to 15-11-71 at the rate of Rs. 1000/- per year. It may be mentioned here that the suit was filed on 16-11-71. The shop lies in a Notified Area to which the provisions of U. P. Act III of 1947 did not apply. The defence was that the provisions of U. P. Act III of 1947 were applicable and that in any case the defendant could not be evicted except on grounds mentioned in Sec.20 of U. P. Act 13 of 1972, hereinafter referred to as the Act. All the pleas were rejected by the trial Court on the finding that U. P. Act 13 of 1972 was not applicable and that the appellant was not entitled to the protection afforded by Sec.39 of U. P. Act 13 of 1972 also because the amount required by Section 39 was not deposited by the appellant within one month of coming into force of that Act and its extension to the Notified Area in question, and the respondent was consequently awarded a decree for ejectment and damages for use and occupation. The defendant appealed but met with no success and the decree of the trial court was affirmed. In the trial court one additional plea was raised for the appellant namely that during the pendency of the appeal in that court on 31-10-1972 the landlord-respondent had accepted Rupees 2,200/- as rent for the shop from the appellant for 26 months prior to the said date and issued a receipt Ext. A-1. It was urged that by acceptance of rent for the period subsequent to the expiry of the tenancy a new lease had been created in favour of the appellant and he had become a tenant by holding over. In support of this submission reliance was placed for the appellant on the case of Bhawanji Lakhamshi v. Himatlal Jamnadas Dani, (AIR 1972 SC 819) but the lower appellate court rejected the plea.

(2.) I have heard Sri M.K. Seth appearing for the appellant and Sri Hargovind Dayal Srivastava appearing for the respondent. The first submission of the learned counsel is that although the courts below found that the money, as required by Section 39, read with Section 40 of the Act was deposited by the appellant beyond one month from the date of commencement of this Act, the lower appellate court erroneously held that this statutory period could not be extended by the court under Section 35 of the Act. I find no force in the submission that the statutory period of one month for making deposits laid down under Section 39 of the Act can be extended by the court under Section 5 of the Limitation Act having regard to the provisions contained in Section 35 of the Act. This question came up directly for consideration before this Court in Sri Chand Gupta v. Madan Lal, (1973 All LJ 635) where it was held that Section 5 cannot be pressed into service to get the delay in making the requisite deposits under Sections 39 and 40 of the Act condoned. This decision is based on the Full Bench decision of this Court in M/s. J. C. and M. Mart v. Assistant Commr., 1968 All LJ 547 : (AIR 1969 All 200) (FB). I am in respectful agreement with the view taken in the aforesaid case and, therefore, hold that the statutory period of one month laid down in Section 39 cannot be extended by the court with the aid of Section 5 of the Limitation Act having regard to the provisions contained in Section 35 of the Act. This submission is rejected.

(3.) I allow the appeal and modify the judgment and decree of the District Judge, Sitapur, dated 27th September, 1973 and dismiss the respondent's suit for ejectment. Rest of the decree of the District Judge is confirmed. The appellant shall get proportionate costs of this appeal from the respondent. Appeal allowed.