Om Prakash Bansal vs Bal Kishan Gupta

A.R. Singh, J.—Heard Shri Manoj Gupta, learned counsel for the appellant and Shri N.K. Chaturvedi, learned counsel for the respondent.

Present appeal has been filed by the plaintiff landlord for setting aside the judgment of the lower appellate Court dated 12.2.88 passed in Civil Appeal No. 61 of 1986 whereby the decree passed by the trial Court in favour of the appellant in original suit No. 382 of 1974 was set aside.

For the purpose of deciding this appeal, it is not necessary to bring detailed facts involved in this case. An open piece of land on station road, Firozabad was let out to the defendant respondent on 121967 at the rate of Rs. 100/ per monthfor the period of 7 years. In the rentnote executed in favour of defendant respondent he was allowed to make constructions during the continuance of tenancy for the purposes of his business and was given right to remove those constructions to which landlord was to have no objection. The suit was filed by the Om Prakash, plaintiff appellant for eviction of the defendant respondent from the land in dispute inter alia on the ground that he had damaged the property and also changed the shape of the land with the result its value is deteriorated and also that the term of the tenancy as provided in the rentnote had expired and despite that he had not vacated the land. Therefore, a notice was given to him for a period of six months on 23775 which was served upon the tenant on 1 783 but he did not remove his possession from the land. Hence, the suit was filed. In the written statement the defendantrespondent inter alia raised the plea that the suit was not maintainable in view of the provision of Section 29Aof the U.P. Act 13 of 1972 for the reason that the defendantrespondent had made construction of permanent nature on his own expenses over the land in dispute with the permission of the landlord and, therefore, the decree of his eviction from the land could not be passed.

The trial Court rejected the plea of the defendantrespondent and held that the eviction of the defendantrespondent was not saved by the provisions of S. 29A of U.P. Act 13 of 1972 for the reason that he was not able to prove that the construction which were allegedly raised on the land in dispute were ten years old so as to attract the protection of the provision against his eviction. The trial Court decreed the suit and ordered for the eviction of the defendantrespondent from the land in suit. The defendantrespondent filed appeal under Section 96, C.P.C. which was heard and decided by Sri R.L. Shukhwar, Vth Addl. Civil Judge, Agra. At the time of hearing of the appeal before the Additional Civil Judge the plaintiffappellant did not appear and the appeal was decided exparte. The learned Additional Civil Judge. Agra vide his judgment and decree dated 12288 allowed the appeal and set aside the decree of trial court, he however allowed plaintiffappellant to withdraw the amount which had already been deposited in the court by way of rent.

The present appeal has been filed by the plaintiffappellant on various grounds. However, Shri Manoj Gupta, learned counsel has confined his arguments only on the questions relating to the protection of the provision of Section 29A of U.P. Act 13 of 1972. On 31188 this appeal was admitted on three questions of law. The questions on which appeal was admitted are as follows:

(a) Whether the lower appellate court was right in reversing the decree of the trial court on the view that the defendant respondent was entitled to the benefit of Section 29A of U.P. Act No. 13 of 1972?

(b) Whether the lower appellate court was justified in reversing the decree of the trial court without adverting to the evidence on record and without setting aside the findings of the trial court specially on issue Nos. 7, 8, 9, and 10?

(c) Whether the benefit of Section 29A of U.P. Act No. 13 of 1972 could be given even in the absence of noncompliance of the mandatory provisions thereof?

The questions ''a'' and "b'' relates to the power of the lower appellate court for setting aside the decree passed by the trial court on the view which is contrary to the view of the trial court regarding applicability of Section 29A of U.P. Act No. 13 of 1972. These two questions are interrelated arid therefore can be dealt with jointly.

A perusal of the judgment passed by the trial court shows that the trial court has agreed that the contentions of defendantrespondent that the structure which had been raised by him on the land in dispute was of permanent nature inasmuch as a tin shade was put on pacca construction for which he had taken permission of the landlord, the plaintiffappellant, which had been granted in the rentnote wherein he was authorised to made constructions for the beneficial enjoyment of the premises for the purposes of his business. However despite the above finding, the trial court did not agree that the defendantrespondent was entitled for getting the protection of Section 29A of U.P. Act 13 of 1972 as against his eviction from the land in suit. This view was formed by the trial court on the ground that the defendant had failed to prove that the said constructions had been raised by the him 10 years ago so as to attract the provisions of the Act. According to the trial court as per the provisions 2(ii) of U.P. Act 13 of 1972 unless construction in question which is raised by the tenant with the permission of the landlord on the land in dispute was made 10 years earlier, the tenant will not be entitled to get the benefit of the provisions of 29A of U.P. Act 13 of 1972. On these reasoning defendants plea against his eviction on the strength of the provisions of Ss. 29A of the U.P. Act 13 of 1972 was turned down by the trial court. The trial court did not reject the plea of the defendant respondent on the ground that the constructions in question were not of permanent nature or that it had not been constructed with the permission of the plaintiff landlord. There was, thus, no occasion for the appellate court to reverse the finding of the trial court on the question. The trial Court had recorded finding on this question in favour of the defendant respondent that the constructions in question which had been made by the defendant respondent were permanent in nature and that it had been made with permission of the landlord. In my opinion, the lower appellate court therefore committed no illegality and finding recorded in this respect by the trial court inures to the benefit of defendantrespondent.

The view taken by the trial court that the provision of Section 29A of U.P.

Act 13 of 1972 would be applicable only if the defendantrespondent proves that the construction in question made by him is 1 0 years old is not legally tenable. This view of the trial court in my opinion was rightly set aside by the lower appellate court.

Shri Manoj G upta, learned counsel was also very casual in questioning the view taken on this point by the lower appellate court. In the course of his argument he did not make serious efforts to dislodge the view.

Bare perusal of Section 29A clearly demonstrates that if construction of permanent nature has been raised by the tenant with the permission of the landlord incurring expenses in that respect, then no decree for his eviction can be passed. Protection given to the tenant under Section 29A is in respect of construction raised by him on his own expenses on open land let out to him whereas protection given to the tenants in other provisions of the Act is in respect of the constructions raised and let out to him by the landlord. Section 2(ii) of the Act is relevant only in respect of the constructions raised by the landlord which are let out to tenants and has no application to cases covered by Section 29A. The purpose behind giving immunity from the applicability of the provisions of the Act in respect of building (constructions) let out to tenants for a period of 15 (now 10) years is to enable the landlord to realise the cost of the constructions incurred by him making construction of the building let out to a tenant. Such immunity, however, is not needed nor it was deemed necessary in respect of constructions which are raised by the tenant himself at his own cost with the prior permission of the landlord on an open place of land which was let out to him. In such a case the question whether the construction is ten years old or is a new construction, is not at all relevant which therefore, needs no examination. The provisions of 29A will immediately become applicable as soon as it is proved that the construction in question has been made by the tenant at his own expenses with the previous permission of the landlord on an open piece of land which the said landlord had let out to him. Nothing more is required to be proved for claiming protection on Section 29A by the tenant.

In my opinion, Lower AppellateCourt has rightly taken the view that the defendantrespondent was entitled for the protection of the provisions of Section 29A of the Act and no decree for his eviction from the land in dispute could be passed. The finding of trial Court on issue Nos. 7, 8, 9 and 10 were, thus, rightly set aside by the Lower Appellate Court. In my opinion, the Lower Appellate Court committed no illegality in this respect. On this view of the matter question of law raised by the learned counsel for the appellant in support of the appeal is not made out and the arguments of the learned counsel in this regard has no merit which is accordingly turned down. So far contention of the learned counsel for the appellant in respect of point ''C'' is concerned, the same deserves acceptance.

Clause (4) of Section 29A provides that tenant of any land to which this Section applies shall be liable to pay to the landlord such rent as may be mutually agreed upon between the parties and in the absence of the agreement such rent determined under Clause (5) will be payable. Under Clause (5) of the Section, the District Magistrate of the district concerned has been entrusted with the job of determining the annual rent payable in respect of land except in cases covered by Clause (6). Such rent is payable from the date of expiration of the term for which the land was let or from the date of commencement of the Section whichever is later. Clause (6) is subdivided into four subclauses namely (a), (b), (c), & (d). Subclause (a) provides that in any suit or appeal or any other proceedings which is pending immediately before the date of commencement of this Section, no decree for eviction of tenant from any land to which this Section applies shall be passed or executed except on one or more grounds mentioned under Clause (2) of Section 20 provided the [tenant within a period of three months I from the commencement of this Section, I through an application filed in the Court [unconditionally offers to pay to the landlord the enhanced rent of the land for |the entire period in suit and with interest at the rate of 10% per annum of the prevailing market value of the land together with sat of the suit or such enhanced rent as will be determined as per subclause (b) by

the Court. Subclause ''C'' provides that upon payment of rent against a receipt duly signed by the plaintiff or by the decree holder or his counsel or ondeposit in court of such enhanced rent along with costs as aforesaid being made by the tenant within such a time which may be fixed by the Court, the Court is required to dismiss the suitor discharge a decree for eviction and a tenancy thereafter shall continue only on the basis of the rent so enhanced. Subclause ''D'' provides that if the tenant fails to pay the amount within the time fixed by the Court, it is required to proceed with the case as if this action was not attracted.

According to the learned counsel, the provisions of Clause (5) and (6) of Section 29A are mandatory in nature which are required to be complied by the Court before benefit to the tenant of the provisions of Section 29A is given. The contention of the learned counsel in the present case is that though the lower appellate court held that the land in suit for which the plaintiff appellant sought the eviction of the tenant respondent may be covered by the provisions of Section 29A and the provisions of Section 29A are attracted to the said land on account of the constructions raised by the defendantrespondent with the permission of the appellant but due to the non compliance of the provisions of subclause ''6'' of the Act by the lower appellate Court, protection granted by the legislature to the tenant in such cases will not be available to the defendant respondent and the suit was liable to succeed. According to the learned counsel, the lower appellate court in the present case has failed to fix the enhanced rent as required by subclause (b) of Clause 6. Consequently there has been no compliance of sub clause (c) as well, for that reason as per the provisions of sub clause (d), the suit was not liable to be dismissed irrespective of the fact that provisions of Section 29A was attracted on the facts of the case.

The contention raised by the learned counsel for the appellant in my opinion has sufficient force. A perusal of the lower appellate court judgment does not indicate that the lower appellate court has at all given its attention to the requirements of subclauses (b) and (c) of Clause 6, though as pointed out by the learned counsel for the defendantrespondent an offer, as required by subclause (a), appears to have been made by the defendantrespondent before the trial Court for payment of the enhanced rent which however was not accepted by the trial Court on the legal view taken by it that in absence of proof from the defendant that the construction in question was 10 years old, Section 29A was not attracted.

Had it been a case of failure of the defendantrespondent to do his part of duty as per the requirements of sobclause (a) of Clause (6), the situation would have been different and the appeal would have been allowed without the requirement of remanding the case back to the trial Court. But as already observed hereinabove, the defendantrespondent by making the offer as per the requirement of law (Section 29A (b) (a) had done his part in as much as he had made an offer to pay the enhanced rent of the land in suit to the landlord and for that purpose he had also moved an application before the trial Court. Therefore the defendantrespondent can not be blamed for the lapse on the part of the Court below in failing to discharge their part of duty which was cast on it due to which reason the defendant could not also discharge his part of duty under sub clause (c).

In the circumstances referred to hereinabove, there is no option open except to remand the case back to the trial Court to enable it to proceed with the case for disposal of the suit of the plaintiffappellant strictly in accordance with the provisions of Section 29A. On the basis of the view taken by the lower appellate court that the provisions of Section 29A of the Act are applicable in the present case and that the tenantdefendant is entitled for the protection of the provisions of Section 29A The trial Court shall on that basis proceed with the disposal of the suit keeping in view the requirements of subclauses (a), (b), (c)''and (d) of clause (6) of that Section.

The result is that the appeal succeeds and is partly allowed. The judgment of the lower appellate Court is upheld in so far as its finding in relation to the applicability of the provisions of Section 29A of the Act to the land in suit is concerned, the remaining part of it is however set aside. The trial Court is directed to proceed to decide the suit of the appellant strictly in accordance with the provisions of Section 29A keeping in view the observations made hereinabove and shall dispose of the suit at the earliest possible without causing any unnecessary delay. The office is directed to send the record of the case back to the trial Court forthwith.