DIN DAYAL Vs. DIN DAYAL

JUDGEMENT

(1.) DIN Dayal son of Beney Lal is the owner of an accommodation situate at Vijai Nagar near Sikkha Gurudwara, Gurudwara Road, Wazirganj, Lucknow. The defendant DIN" Dayal is the tenant of the said accommodation. According to the plaintiff the rent of the accommoda tion Is Rs. 85/-. On 16th October, 1970. a combined notice of demand for arrears of rent and termination of tenancy was issued by the landlord to the tenant. The notice was served on 19th October, 1970. The notice is on record and has been numbered as Ex. 5. A perusal of the notice indicates that the defendant was asked to pay the arrears amounting to Rs. 2952.80. It was also stated in the notice that the landlord did not wish to keep the defendant as his tenant and terminated the tenancy asking him to vacate premises within thirty days of the receipt of the notice. It has been con ceded by the learned counsel for the parties that the accommodation in dispute was not governed by U. P. Act No.III of 1947. U. P. Act No. XIII of 1972 came into force on 15th July, 1972. The landlord filed a suit for the ejectment of the-defendant on 8th November, 1972. According to the allegations of the plaint the cause of action accrued on 16th October, 1970, when the registered notice was sent to the defendant, on 19th October, 1970 when the notice was served on the defendant and lastly on 16th November, 1970 when the period of notice expired. The defendant contested the suit that the rent of the accommodation was Rs. 55/-; that the defendant having deposited the rent as envisaged by U. P. Act No. 13 of 1972 is not in arrears of rent; that the defendant has not committed any default in payment of rent; that the notice terminating the tenancy was illegal. On the above pleadings of the parties a number of issues were framed. The two principal issues were; (1) whether the rate of rent was enhanced from Rs. 55/- to Rs. 85/- per month, and whether the notice of demand and ejectment is illegal and invalid ? (2) whether the default should be subsequent to the enforcement of U. P. Act 13 of 1972 ? If so, is the defendant liable to be ejected ? From a perusal of the record it appears that it is the admitted case of the parties that U. P. Act No. XIII of 1972 is applicable in the instant case. It is contended by the defendant that since the default was committed prior to the enforcement of U. P. Act XIII of 1972, the defendant cannot be ejected on the basis of that default after the enforcement of U. P. Act XIII of 1972. According to him the default and the notice of demand must be subsequent to the enforcement of U. P. Act XIII of 1972 in order to attract the provi sions of Section 20(2) of U. P. Act XIII of 1972. According to the trial Court Section 20 (2) of U. P. Act XIII of 1972 bars the filing of the suit unless the defendant commits default in payment of rent for a specified period. Once default has been committed as provided by Section 20 (2) it is immaterial whether it was prior to the enforcement of the U. P. Act XIII of 1972 or subsequent thereof. The trial Court also recorded finding that the rent of the accommodation was Rs. 85/- per month. It was also found that the rent till 30th June, 1970 had not been paid. In regard to the arrears of rent by money order at the rate of Rs. 55/- per month whereas the rate was Rs. 85/-per month and, therefore, the landlord was justified in refusing the rent. The deposit under Section 20 (4) of the Act was also, therefore, not valid. The notice dated 16th October, 1970 was held valid. After recording these findings the trial Court decreed the plaintiff's suit for ejectment and for recovery of Rs. 2952.80 as arrears of rent. Aggrieved by the decree passed by the trial Court, DIN Dayal the tenant filed a revision application under Section 25 Small Causes Courts Act. The revision application was dismissed by the Addl. District Judge by an order dated 20th November, 1976. Against the order of the Additional District Judge, the tenant has come to this Court by way of this revision application under Section 115, C. P. C. Learned Counsel for the tenant, who is the applicant in this Court has contended that the tenancy was determined by a notice under Section 106 of the Transfer of Property Act prior to enforcement of U. P. Act XIII of 1972 and has submitted that the suit filed by the landlord on the basis of a cause of action which accrued prior to the enforcement of U. P. Act XIII of 1972 cannot be the basis of the suit under Section 20 (2) of U. P. Act No. XIII of 1972. The learned counsel further submitted that even though the tenancy was determined prior to the enforcement of the Act, a decree for ejectment can only be passed if the tenant who is in arrears of rent for not less than four months has failed to pay the same to the landlord within one month from the date of service upon him of the notice of demand. He submitted that on the basis of the cause of action which accrued prior to the enforcement of U. P. Act XIII of 1972 no suit can be filed for the enforcement of rights under the said Act. On the other hand it was contended by the learned counsel for the opposite party that the defendant was admittedly in arrears of rent for more than four months. On a close analysis of the case, it appears that the accommodation which was previously not covered by U. P. Act No. III of 1947, has been brought within the ambit of U. P. Act XIII of 1972. It cannot be disputed that on the date on which the suit was instituted i.e., 18th November, 1972, U. P. Act XIII of 1972 had already come into force. Section 20 (1) Reads as follows : "Save as provided in sub-section (2) no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner..............................................................................Sub-section (2)" A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely ; (a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand." A correct reading of the said provision indicates that even if the tenancy has been determined by a valid notice under Section 106 of the Transfer of Property Act after the enforcement of the U. P. Act XIII of 1972 a notice has to be given to the tenant requiring him to pay the arrears of rent for not less than four months and if in pursuance of the said notice the payment was not made within one month of the date of service of notice of demand the liability for ejectment would be incurred. It is thus clear that Section 20 (2) contemplates that a suit for ejectment to which the Act applies, a notice of demand has to be made to the tenant requiring him to pay up the arrears. Admittedly, the notice contemplated by Section 20 (2) has not been given to the tenant. Even though the tenancy may have been determined by notice dated 16th October, 1970 the require ments of Section 20 (2) has to be complied with, which provides that a suit for eviction of a tenant from a building after the determination of the tenancy may be instituted after a notice of demand as contemplated by the said Section is served on the tenant and payment of rent is not made. In this view of the matter there is no option but to hold that under U. P. Act XIII of 1972 mere termination of tenancy will not afford a cause of action for the ejectment of the tenant unless a notice of demand as contemplated by Sec tion 20 (2) of the Act has been given and has not been complied with. The argument of the learned counsel for the opposite party is that if the tenancy is determined the consequence of the determination of tenancy would follow and a decree of ejectment can be passed. More so, in view of the fact that defendant is admittedly in arrears of rent for more than four months. Having regard to the language of Section 20 (1) and (2) it is not possible to agree with the contention of the learned counsel for the opposite party. In my opinion, the scheme of the Act seems to indicate that although tenancy may have been determined in a case which was not governed by U. P. Act HI of 1947, by a notice under Section 106 of the Transfer of Property Act, the legislature intervened to the rescue of the tenants by providing that even though the tenancy is determined, the landlord is required to serve notice of demand for arrears of rent for not less than four months and if pursuant to that demand, the payment is not made, the liability for ejectment would accrue. In my opinion, the contention raised by the learned counsel for the applicant has to be accepted. For the reasons stated above, I allow the revision application and set aside the decree for ejectment passed by the two Courts below. In the circumstances of the case the parties shall bear their own costs.