KRISHNA SWAROOP BHATNAGAR Vs. SATISH CHANDRA GUPTA

JUDGEMENT

(1.) THIS is a plaintiffs' revision. A suit was filed by the present applicants on March 31, 1970 claiming that the defendant-opposite party who was a tenant of the premises in suit was not entitled to continue in possession thereof as his tenancy had been terminated by a notice under Section 106 of the Transfer of Property Act. The premises in suit were alleged to be constructed in the year 1959 and, as such outside the purview of the provisions of U. P. Act No. III of 1947. The suit was preceded by a notice in which the applicants had, inter alia, asserted that they did not want to keep the defendant as tenant in the premises and demanded that possession over the premises be handed over to them. It was also asserted that in case the defendant continued to remain in posses sion, in spite of the above notice, he would be liable to pay damages for use and occupation of the premises at the rate of Rs. 100/- per month. In the suit, rent for the period of one month between February 1, 1970 and February 28, 1970 was claimed at Rs. 56/-. For the subsequent period, the damages claimed were at the rate of Rs. 100/- per month for the pendent elite and future period. The defendant filed a written statement in which, inter alia, he disputed the right of the plaintiff- applicants to terminate his tenancy and also dis claimed any liability for payment of damages at the rate claimed by the applicants. During the pendency of the suit, U. P. Act No. XIII of 1972 came into force with effect from July 15, 1972 and with effect from September 20, 1972, U. P. Act No. XXXVII of 1972 was also enforced. The defendant-opposite party sought relief against his ejectment under Section 39 of the former Act and made the requisite deposits in that regard. The amounts which were deposited by the defendant were such which, according to him, also covered the amounts which he was required to deposit under Rule 5 of Order XV of the Code of Civil Procedure introduced by U. P. Act No. XXXVII of 1972. The suit was tried by the Munsif of Moradabad exercising the powers of Judge, Small Causes. The trial Judge framed two issues being; (1) Whether the suit was barred by the provisions of U. P. Act No. XVIII of 1972? and, (2) Whether the defendant-opposite party was entitled to the benefit of Section 39 of the said Act ? The third issue was about relief to which the plaintiffs were entitled. The trial Judge came to the conclusion that the premises in suit would be govern ed by the provisions of U. P. Act No. XIII of 1972 and that the deposits which were made by the defendant were in accordance with Section 39 of the said Act so that no decree for the ejectment of the defendant could be passed. The trial Judgs, consequently, concluded that the plaintiff-appellants were not entitled to the relief of ejectment of the defendant but were entitled to rent for the period between February 1, 1970 and February 28, 1970 at the rate of Rs. 56/- per month. The plaintiffs were not satisfied with the decree passed by the trial Court and challenged the same in a revision under Section 25 of the Provincial Small Cause Courts Act. THIS revision came to be decided by the 5th Addi tional District Judge, Moradabad who dismissed the same. The revisional Court was of opinion that the deposits made by the defendant were in accordance with the provisions of Section 39 of U. P. Act No. XIII of 1972 and that, therefore, the trial Judge had rightly dismissed the suit for the ejectment of the defendant. He also took the view that the trial Judge rightly did not strike out the defence of the opposite-party for the alleged non-com pliance by him of the provisions of Order XV, Rule 5, C. P. C. as contended for by the applicants. Aggrieved, the plaintiffs have come up before this Court in the present application in revision under Section 115, C. P. C. Appearing on behalf of the applicants, Dr. Gyan Prakash, their learned counsel, has contended that the deposits made by the defendant-opposite party were not in accordance with Rule 5 of Order XV of the Code of Civil Pro cedure as brought in by the provisions of U. P. Act No. XXXVII of 1972 and it was, therefore, incumbent upon the trial Judge to have struck off the defence of the opposite party. According to his submission, the failure of the trial Judge to do so was an error which vitiated the decree passed by him. The Additional District Judge in revision also, according to the submission, failed to exercise his jurisdiction in not taking the view on that account that the decree of the trial Judge was contrary to law. THIS submission, in my opinion, is not well founded. Order XV, Rule 5 of the Code of Civil Procedure gives a discretion to a Court, in certain circumstances, to strike out the defence of a defendant. Rule 5 docs not lay down any inflexible rule that where compliance with its terms is not strictly made, the defence of a defendant must necessarily be struck off. The provision itself empowers the Court to decide on representa tion by a defendant, that the defence, in the circumstances of a particular case, did not deserve to be struck off. In any case, the trial Judge having exercised a discretion not to strike out the defence of the opposite party and the same having not been interfered with by the Additional District Judge in a revision under Section 25 of the Provincial Small Cause Courts Act, it cannot be said that the Courts below have committed an error of a nature which requires interference by this Court with their decision in that regard under Section 115, C. P. C. In the next place, it has been contended by Dr. Gyan Prakash that the benefit of Section 39 of U. P. Act No XIII of 1972 could not have been granted to the defendant-opposite party in view of the fact that the deposits that were made were not in accordance with that provision. The precise submission in this regard is that the rate of rent for purposes of Section 39 has been assumed by the Courts below to be Rs.56/- per month and not at Rs.100/- per month as claimed by the plaintiffs. Likewise, according to the submission, the rate at which the amount of damages for use and occupation for the period subsequent to the termination of the tenancy of the defendant was to be calculated was incorrectly held to be Rs.56/- per month and not Rs.100/-per month as claimed by the plaintiffs. In this regard, Dr. Gyan Prakash has invited my attention to the recital contained in the notice sent by the plaintiffs under Section 106 of the Transfer of Property Act in which it was asserted that in case the plaintiffs failed to vacate the premises in suit, they would be liable to pay damages at the rate of Rs. 100/- per month. He has also drawn my attention to the claim in that regard made by the plaintiffs in the plaint as well as to the deposition of the plaintiff in which, inter alia, it was stated by him that the fair market letting value of the premises in suit was Rs.100/- per month. The submission that the rate of rent for purposes of Section 39 was to be treated at a figure than Rs. 56/- per month which admittedly was a rate of rent, cannot be accepted. It is not the plaintiffs' case that at any stage prior to or at the time of terminating the tenancy of the defendant-opposite party was it proposed by the plaintiff-applicants that the rate of rent for the premises in suit would be in any case more than Rs.56/- per month. Even in the notice under Section 106 of the Transfer of Property Act what was asserted by the applicant was that in case the defendant continued to remain in possession of the premises in spite of the termination of their tenancy, they would be liable to pay damages for use and occupation at the rate of Rs.100/- per month. In Mohammad Noor v. Ashiq Beg A.I.R. 1933 Oudh 465 a Division Bench took the view that where by a notice a lessor intimated to the lessee that he should vacate the premises and that in case he did not do so, he will have to pay rent at an enhanced rate, it would be inferred from the conduct of the lessee remain ing in possession of the premises that the latter impliedly accepted the term for payment of enhanced rent for future occupation. Like-wise, in Madan Mohan Garg v. Bohra Ram Lal, A.I.R. 1934 All. 115 also a learned Single Judge of this Court, who followed the aforesaid Division Bench decision of the Oudh Chief Court, took the view that the conduct of a lessee continuing in possession of a premises upon being intimated by the lessor that he would have to pay rent at an enhanced rate would amount to acceptance of the liability for payment of enhanced rent by him. It is noticeable that in the plaint, the plaintiffs had themselves claimed rent for the period between February 1,1970 and February 28, 1970 at the rate of Rs. 56/. It is obvious, therefore, that at no point of time did the plain tiffs claimed that the rate of rent was in any case more than Rs. 56/- per month. In these circumstances, it cannot be held that the amount of rent in the instant case for purposes of Section 39 of U. P. Act No. XIII of 1972 was more than Rs. 56/- per month. On that finding, it has to be held that the defendant was not required to deposit any amount as damages for use and occupation after termination of his tenancy at a rate higher than Rs. 56/- per month. Section 39 in terms provides that for being relieved against the liability for ejectment, the damages for use and occupation which are to be deposited by a lessee are to be calculated at the same rate as rent. In Chiranji Lal v. Kunwar Prasad, A.I.R. 1963 All. 249 the learned Single Judge who observed that the Court had to determine the quantum of mesne profits which were payable by a lessee, whose tenancy had been validly terminated, for that period subsequent to the termination thereof in accordance with the real value of the accommodation, was dealing with a case under U. P. Act No. III of 1947 which did not provide the measure for calculating the amount of damages for use and occupation which was to be paid by a lessee for protecting him self from ejectment. That case, therefore, does not assist the applicant in this regard. Another submission which has been made by Dr. Gyan Prakash relates to the claim for the amount of damages for use and occupation in respect of the premises in suit from after February 28, 1970. The submission in this regard has been that in spite of a specific claim having been made by the applicant before the trial Court in the plaint, the Court has not adverted to this aspect nor awarded any amount towards damages for use and occupation for a period subsequent to February 28, 1970 including pendentelite and future damages. The argument proceeds that the applicants having specifical ly asserted in the notice given by them to the defendant-opposite party and having pleaded in the plaint that for the period after the termination of his tenancy, the defendant-opposite party would be liable to pay damages at the rate of Rs. 100/-per month and having claimed a specific relief (being relief (c) in that regard, it was incumbent upon the trial Judge to have considered the matter and to have recorded a finding in that regard. The submission also is that the same plea was specifically raised before the revisional Court on behalf of the applicant in the form of ground Nos. 3 and 5 but the revi sional Court also did not advert to it. Therefore, according to the submission the matter deserves to be sent back to the trial Judge for deciding upon the amount which was payable by the defendant-opposite party for the period subsequent to February 28, 1970. It was argued that as far as the damages for use and occupation at the same rate as the monthly rent provided in Section 39 of U. P. Act No. XIII of 1972 is concerned, it only related to the question about the grant or otherwise of the decree for ejectment of a tenant from the premises in suit and was not calculated to provide the measure of damages for use and occupation to which a lessor might be entitled. The issues which were actually agitated by the parties before the trial Judge have been noticed earlier. It appears that in spite of the pleadings in that regard, the plaintiffs did not specifically invite the trial Judge to go into the question of the quantum of damages to which they were entitled for the period subsequent to February 28. 1970. The relief in regard to damage subsequent to February 28, 1970 though not specifically adverted to by the trial Judge would be deemed to have been refused at the enhanced rate claimed by the plaintiffs. However, the plaintiffs would undoubtedly be entitled to damages for use and occupation at least at the rate of rent at which the premises had been let out by them to the defendant. The benefit of Sec tion 39 of U. P. Act No. XIII of 1972 was available to the defendant-opposite party only on deposit by him of the entire amount of rent in arrears and damages for use and occupation calculated at that rate. From the observa tions made by the trial Judge on issue No. 2, it is clear that the said amounts were actually deposited. The judgment of the revisional Court does not indicate that the question about the claim for damages for use and occupation at a rate higher than Rs. 56/- per month was specifically argued before it. From the memorandum of revision in this Court also it is clear that the plaintiffs have not raised any grievance to the effect that the question though argued was not dealt with by the revisional Court. In the circumstances, it is difficult to accept the plea that the question of damages at the enhanced rate for a period subsequent to the termination of the tenancy of the defendant-opposite party though raised, having not been dealt with by the Courts below, their decision should be held to suffer from an error of a nature with which this Court should interfere under Section 115, C. P. C. Learned counsel for the applicants has urged that in any case, the appli cants are entitled to withdraw the amount which has been deposited by the defendant for obtaining the benefit of Section 39 of U. P. Act No. XIII of 1972 as well as that deposited under Order XV, Rule 5, C. P. C. Sri R. P. Goel, appearing for the defendant-opposite party has very fairly stated that the defendant has no objection to the same being withdrawn by the plaintiffs. In the result, I find no merit in this revision which is accordingly dismissed with costs.