S D SAIGAL Vs. VIDYA VIJAN

JUDGEMENT

(1.) THIS is an application in revision filed by the defendant in a suit for his eviction from the shop in dispute for recovery of arrears of rent and damages for use and occupation pendente lite and future and certain other reliefs. The suit was initially instituted by Chandi Ram Bulaki Ram Vijan, who died during the pendency of the suit and opposite party Smt. Vidya Vijan was brought on record as his heir and legal representative. The learned Judge of the court of small causes to whom the suit was transferred after coming into force of the U. P. Civil Laws (Amendment) Act, 1972 decreed the suit. The applicant preferred a revision under S. 25 of the Provincial Small Cause Courts Act which was dismissed by the learned District Judge, Dehradun. In both the courts, it was contended, as it has been contended before me, that the defendant-applicant was entitled to the benefit of S. 39 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and since he had made the requisite deposit within the time allowed by law, a decree for his ejectment could not be passed. The contention was repelled by the trial court as well as the court below.

(2.) TO appreciate the argument of the learned counsel appearing on behalf of the applicant, it is necessary to set out certain relevant dates. The suit was instituted in the court of the learned Munsif on the 23rd of February, 1966. On the 16th of Sept. 1972, the U.P. Civil Laws (Amendment) Act (U. P. Act No. 37 of 1972) came into force and on the 27th Nov., 1972, the suit was transferred to the learned judge of the court of small causes. In the meanwhile the original plaintiff had died on the 23rd of Dec., 1970 while the suit was still pending in the court of the learned Munsif. On the 9th of March, 1971, the opposite party applied for being substituted in place of the deceased plaintiff and prayed for being brought on record as his heir and legal representative. On the 11th of May, 1973 by which time the suit had already been transferred to the court of the learned Judge of small causes, the opposite party was ordered to be brought on record as heir and legal representative of the deceased plaintiff: Learned counsel appearing on behalf of the applicant has brought to my notice that during the pendency of the suit between the 30th April, 1967 and the 14th April, 1973 the defendant-applicant had deposited in the trial court an amount of Rs. 13,240/- towards the arrears of rent and damages for use and occupation etc., payable in respect of the premises forming subject matter of the suit. Learned counsel further stated that on the 11th of May, 1973 when the opposite party was substituted in consequence of an order under O. 22 R. 5 of the Civil P. C. as heir and legal representative of the deceased plaintiff, an amount of Rupees 11,559.50 p. alone was due on account of the amounts contemplated by S. 39 of U. P. Act XIII of 1972 (hereinafter referred to as the Act). It was contended by learned counsel for the applicant that since the original plaintiff had died on 23rd Dec. 1970 and there was no plaintiff in the suit till the 11th of May, 1973 when the opposite party was substituted as heir and legal representative of the deceased the original plaintiff, the suit was not properly constituted and consequently no suit was pending till the 11th of May, 1973 within the meaning of S. 39 of the Act. He went on to urge that since no suit was pending on the 15th of July, 1972 because there was no plaintiff in the suit on that date, the applicant was entitled to make the deposits envisaged by S. 39 of the Act within one month of the 11th of May, 1973 when he must have appeared and acquired knowledge of the suit since it was on that date that he became a party to that suit. It was urged that by the 14th of April, 1973 which was nearly a month prior to the 11th of May, 1973, the defendant applicant had already deposited in court an amount exceeding what he was required to do in compliance with S. 39 of the Act and consequently the courts below acted illegally and without jurisdiction in not relieving him from the liability of ejectment from the disputed premises.

(3.) IN any case, the contention of the learned counsel for the applicant that on the 15th of July, 1972 the suit giving rise to the present revision was not pending is wholly untenable. As soon as Chandi Ram Bulaki Ram Vijan, who had initially instituted the suit, died Smt. Vidya Vijan, his heir and legal representative, stepped into his shoes and succeeded to all his rights and liabilities including the right to continue the suit against the applicant. The order passed by the court under O. 22, R. 5 of Civil P. C. merely recognised that right. Between the 23rd of Dec., 1970 when Chandi Ram Bulaki Ram Vijan died and the 9th of March, 1971 (sic) when opposite party was brought on record as his heir and legal representative, though the suit continued to remain pending, it was lying dormant, in a state of suspense. The suit which had been commenced on the 23rd of February, 1966 had not come to an end because of the death of Chandi Ram Bulaki Ram Vijan on the 23rd of Dec., 1970. The substitution of the opposite party as the heir and legal representative of Chandi Ram Bulaki Ram Vijan on the 11th May, 1973 related back to the date of the death on 23rd Dec., 1970 because there is no escape from the fact that the opposite party became entitled to pursue the suit to its conclusion not because of the order of the court but because of the fact that she was heir and legal representative and stepped into the shoes of the deceased immediately on his death.