JAI BHAGWAN Vs. DHARAM VIR

JUDGEMENT

(1.) THIS is plaintiff's appeal arising out of a suit filed by him for the eviction of the defendant from the shop in dispute. The plaintiff's case was that the shop was a post 1951 construction and he served a valid notice terminating the tenancy of the defendant and, as such he was entitled to a decree for the eviction of the tenant. The trial court found that the shop was a post 1951 construction and, therefore, the U. P. (Temporary) Control of Rent and Eviction Act, 1947 did not apply to it. It is further held that the plaintiff having served a valid notice under section 106 of the Transfer of Property Act terminating the defendant's tenancy, he was entitled to a decree for the eviction of the defendant from the shop in question. It has further been found that no permission of the District Magistrate was required for the institution of the suit. The suit was decreed on 12.7.1972. On 15.7.1972 the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act; 1972 (U. P. Act XIII of 1972) came into force. The appeal by the tenant against the decree of the trial court was riled on 24.7.72 and a sum of Rs. 415/- was deposited in the trial court on 14.8.1972. THIS deposit was made by the defendant in order to get the benefit of section 39 read with Section 40 of the aforesaid Act. It has been found that the notice of the appeal was served on the plaintiff respondent on 14.8.1972. The report of the process server regarding the service of the notice is dated 21.8.1972. The plaintiff landlord filed the vakalatnama of his counsel on 8.9.1972. Before the lower appellate court it was urged on behalf of the defendant appellant that in view of the fact that he had made a deposit on 14.8.1972 of a sum of Rs. 415/- within one month of the coming into force of the aforesaid Act, he was entitled to the benefit of section 39 read with section 40 of the aforesaid Act. In the lower appellate court it was also submitted on behalf of the plaintiff appellant that the tenant respondent who was the appellant before the lower appellate court, had not deposited the expenses of the plaintiff in appeal. THIS plea was rejected by the lower appellate court on the ground that the plaintiff respondent before the lower appellate court had not incurred any expenses in the appeal, as the vakalatnama on behalf of the plaintiff landlord was filed before the lower appellate court only on 8.9.1972. The lower appellate court, therefore, came to the conclusion that since the construction involved in the suit was a post 1951 construction the tenant was entitled to the benefit of section 39 read with section 40 of the Act. Accordingly, the lower appellate court set aside the decree and passed con sequential orders. Aggrieved by the order of the lower appellate court, the plaintiff landlord has instituted the present appeal. It is submitted that the lower appellate court erred in law in granting the, tenant respondent the benefit of section 39 read with section 40 of the aforesaid Act. The first submission of the learned counsel for the appellant is that the costs of the appellant in the lower appellate court not having been deposited when the deposit of Rs. 415/- was made on 14.8.1972 by the defendant respondent, he was not entitled to the benefit of section 39 read with section 40 of the Act. In support of this proposition the learned counsel for the appellant has relied upon a decision of this Court in the case of R.D. Ramnath and Co. and another v. Girdhari lal and another (1975 A.L.J. 1). It was observed in that case as follows: "The expression 'full costs of the suit' in respect of a pending suit will represent the amount of court fee paid on the plaint and on other documents and other taxable expenses incurred by the landlord by the date of deposit together with such amount of the Advocate's fee and the fee of his clerk as is taxable on the contested scale whether any certificate of fee has or has not been filed by the date of deposit. In case of a first appeal or revision filed against a decree or order of the trial court it will represent the costs awarded to the landlord in the decree or order together with the amount paid as court fee on the memorandum of appeal or revision and other documents and other taxable expenses incurred in the first appellate or revisional court, including the Advocate's fee and the fee of his clerk which are to be computed in the manner stated above. In case of second appeal or revision filed against a decree or order of the first appellate or revisional court it will represent the costs awarded to the landlord in the decree or order of the trial Court as well as the first appellate or revisional Court together with the amount paid towards court fee on the memorandum of appeal or revision and on other documents and other taxable expenses incurred in the Advocate's fee and the fee of his clerk which are to be computed in the manner stated above. The learned counsel for the appellant submits that the defendant respondent should have deposited the counsel's fee in the appellate court before he was entitled to the behefit of the section 39 read with section 40 of the aforesaid Act. As has been noticed earlier, the deposit was made on 14th August, 1972 and the plaintiff filed the vakalatnama of his counsel on 8.9.1972. On the date of the deposit of the sum of Rs. 415/- there was nothing on the record of the lower appellate court to indicate that any expenses had been incurred by the plaintiff in engaging a counsel. In Paragraph 22 of the aforesaid case it has been observed as follows:- "It is an axiom that the law does not seek to compel a man to do what which he cannot possibly perform-lex non cogit ad impossibilis. In our opinion the expression "full costs" in section 39 refers to such costs as can be ascertained on the date of the deposit with reference to the material on the record and the rules of the Court." On the facts of the instant case the counsel's fee of the plaintiff respon dent could not have been ascertained on 14.8.1972, as it was not even known whether the plaintiff would engage any counsel. Thus, it must be held that the deposit made of Rs. 415/- cannot be held to be insufficient on the ground that the counsel's fee of the plaintiff respondent was not included in the deposit made on 14.8.1972. The next submission of the learned counsel for the appellant is that the deposit of Rs. 415/- was made on 14th August, 1972 in the trial court. According to him it should have been made in the appellate court where the appeal was pending, and as the same was not done, the tenant respondent was not entitled to the benefit of section 39 read with section 40 of the Act. In support of his argument the learned counsel again relies upon the above mentioned decision. In above case a similar question was involved and it was dealt with as follows:- "In our opinion, the only changes which are necessary to be made in section 39 in regard to its applicability to appeals or revisions are those which have already been pointed out above. It would be stretching the scope of mutatis mutandis too wide to interpret the word "the court before which the suit is pending" with reference to the pendency of an appeal or revision to mean the trial court and not the court before which the appeal or revision is pending. The benefit of Sec. 39, namely, that no decree for eviction shall be passed on the deposit being made except on any of the grounds mentioned therein, can be given to the tenant only by the court before which the case is pending. If it is the stage of suit it is the trial court. If, on the other hand, the case is pending before the appellate or revisional court it is that court on which a duty is cast not to pass a decree for eviction except in the circumstances mentioned in section 39. No decree for eviction is to be passed only if the necessary deposit has been made within the prescribed period. Whether the necessary deposit has been made within the prescribed time would be one of the questions which the court will have to take into consideration before dismissing the suit for eviction. The Court on which a duty has been cast not to pass a decree for eviction would be in a better position to ascertain whether the necessary deposit has been made within the prescribed period if the said deposit is made in that very court. THIS may have been the purpose of making a provision for the deposit in the court before which the suit is pending which, with reference to appeal or revision, would, as pointed out above, mean the court before which the appeal or revision is pending." The aforesaid decision is a Division Bench decision and is binding on me. It must, accordingly be held that the deposit made by the tenant respondent in the trial court could not enable him to get the benefit of section 39 read with section 40 of the Act as the deposit should have been made in the appellate court where the appeal was pending. In the result, the appeal succeeds and is allowed, and the decree of the lower appellate court is set aside. Since the lower appellate court has not decided the matter on merits, the appeal filed by the tenant respondent in this Court, who was the respondent before the lower appellate court, shall now be heard and decided on merits, by the lower appellate court. In the special circumstances of the case, the parties will bear their own costs.