Pooran Chand Bhatt vs VII Additional.District Judge, Lucknow & Others

R.C. Deo Sharma J.

The petitioner who was a tenant of certain premises has preferred this petition under Article 226 of the Constitution praying that the orders of his eviction passed by the Additional Judge, Small Cause Court, Lucknow and the 7th Additional District Judge, Lucknow, while dismissing the revision petition be quashed.

The facts necessary for the decision of the case may briefly be stated thus: The petitioner was admitted as a tenant of House No. 15, Chand Ganj, Lucknow, by the oppositeparty No. 3 on a monthly rent of Rs. 60.00 with effect from 1.7.1969. As rent from 1.1.1977 to end of October 1977 had fallen, in arrears, the oppositeparty No. 3 filed Suit No. 1356 of 3 977 in the Court of Judge Small Causes, Lucknow. He claimed a decree for arrears of rent and ejectment. The petitioner tenant, on the first date of hearing of the suit, made an application under Section 20 (4) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. XIII of 1972). Earlier, he had also deposited rent under Section 30 of the said Act. He also prayed for relief against eviction under Section 39 of the said Act. It appears that the relief was granted to him by judgment and order dated 10.10.1980 but the plaintifflandlord filed a revision against that order. The case was remanded by the revisional court with the observation that U.P. Act No. XIII of 1972 had become applicable to the building on its completing ten years of age and consequently the tenant became entitled to the benefit of Section 39 of the said Act if the conditions laid down in that section were satisfied. When the matter came up before the trial court., after remand, it was found that the Act had become applicable to the building in question with effect from 1.4.1980 because the first assessment in respect of the house became effective on 1.4.1970. It was also found that the application under Section 39 of the Act for relief against eviction had been made on 30.7.79 i.e. before the Act had become applicable to the premises and consequently relief under Section 39 or under Section 20 (4) was not permissible. That being so, the suit was decreed for arrears of rent and damages for use and occupation pendente lite as also for eviction of the petitioner from the premises in question. This was by judgment and order dated 28.8.1982 of the Additional Judge, Small Causes, Lucknow (vide Annexure No. 5 to the writ petition). A revision petition was filed by the tenantpetitioner and the same was also dismissed/on the ground that according to the decision of the Hon''ble Supreme� Court U.P. Act No XIII of 1972 could apply only to those suits which were pending on the date of commencement of� that Act i.e. 15.7.1972 and since the instant suit was filed on 21.11.1977 the saidAct was held inapplicable. This was through the judgment and order dated 11.1.1983 passed by the learned VIIth Addl. District Judge, Lucknow, vide Annexure No. 7 to the petition. A typed copy is also filed as Annexure No. 8.

The petitioner''s main contention in this writ petition is that even if the said Act had become applicable to the building in question with effect from 1.4.1980 relief should have been granted to him because he had already deposited the entire arrears of rent together with cost and interest besides some extra amount to cover the errors and omissions�. It was also contended that the finding of the learned Addl. District Judge to the effect that the benefit of Section 39 could be extended only in those suits which were pending on 15.7.1972, the date of commencement of the said Act was erroneous.

There is no doubt that U.P. Act No. XIII of 1972 will become applicable to every building after it has completed 10 years reckoned from the date of completion of the constructions. Although it was contended that ten years'' period should be reckoned from the date of the physical completion of the building which was completed in June, 1969 but in view of the fact that the building is assessed to house tax and water tax the relevant date to count the period of ten years would be the date on which the first assessment came into effect and it has not been disputed that the first assessment became effective on 1.4.1970. Thus the Act would start applying to the building from 1.4.1980. The learned Addl. District Judge has observed that in a Supreme Court decision reported in 1982 SC 1230 = 1982 Alld. Rent Cases p. 391 (Om Prakash Gupta v. Dig Vijendrapal Gupta) it was held that in order to attract Section 39 it was necessary that the suit should be pending on the date of commencement of the Act i.e. 1571972. The learned Judge also observed that even though this observation of the Hon''ble Supreme Court was in the nature of an obiter dicta, it was binding on him. The aforesaid decision of the Hon''ble Supreme Court contained in the case of Om Prakash Gupta came up for consideration before it again in Vineet Kumar v. Mangal Sain Wadhera (1984 All LJ 102). The decision was explained and it was emphasized that the date of the application of the Act and consequently Section 39 thereof to a building would be when ten years'' period is completed reckoned from the date of the completion of the construction, and in case of building assessed to house tax and water tax the starting point for reckoning ten years would be the date when the first assessment takes effect. In the case of Vineet Kumar (Supra) it was clearly laid down that the Act would start applying to a building on completion of ten years reckoned as aforesaid and notice of this new fact has got to be taken if this ten years period is completed during the pendency of the suit either in the appellate or revisional court. In that case also, the building had completed ten years of age while the matter was pending before the Addl. District Judge. It was also held that it would be immaterial if the building was not ten years'' old on the date of the suit and what was material was that even if the building became ten years of age during the pendency of the litigation the benefit of Section 39 should be available to the tenant. The High Court had in that case upheld the decree for eviction which was set aside by the Hon''ble Supreme Court. As regards the arrears of rent the matter was remanded by the High Court and this order was upheld with a further direction that the Addl.District Judge should apply the new Act i.e. U.P. Act No. XIII of 1972 and give the protection thereof to the tenant by giving him an opportunity to deposit the dues contemplated by Section 39, after first determining whether any amount was due from the tenant towards the rent or not. In this view of the matter it is obvious that the finding of the learned Addl. District Judge to the effect that benefit of section 39 could not be given to the tenant as the suit was not pending on the date of commencement of the Act i.e. on 15.7.1972 cannot be upheld. In the case of Vineet Kumar (supra), as observed above, the Hon''ble Supreme Court had given an opportunity to the tenant to comply with the provisions of section 39 and deposit the dues, if any, although under section 39 the tenant should have himself deposited the entire amount within one month of the date the Act first beanie applicable to the building. In the present case, however, there were stronger grounds for allowing the tenant to comply with the provisions of Section 39 if he has not already complied with the same. A copy of the revision petition made before the learned District Judge is contained in Annexure No. 6 to the petition. Para10 thereof clearly mentions that even if the date of completion of the building was taken to be 1.4.1970 the benefit should ha e been given to him as the entire rent was deposited in the court. As the learned Addl. District Judge has decided the matter on the legal ground that the Act and consequently section 39 thereof was not applicable to the building as the suit was �not pending on 15. 7. 1972 he did not decide the question whether the entire amount of rent, damages, costs and interest had been deposited or not. It would appear from Annexure No. 4 that rent from 1.1.1977 to 31.7.1979 besides costs of the suit, counsel''s fee, interest and the additional amount for �errors and omissions had been deposited after deducting Rs. 550.00 which was earlier deposited, vide Annexure No. 1. This was in addition to the relit for 1.1.1977 to 31.1.1978 deposited under Section 30 of the said Act. It will also appear that even thereafter rent had been deposited as and when it fell due or in installments. The last payment was in respect cf the calender year 1983 which is evidenced by a receipt dated 19.1.1984 signed by the counsel for the landlordopposite party No. 3 and filedon the record of this writ petition. Thus it will appear that rent not only in respect of the period during which litigation was pending in the two courts below but also in respect of the period thereafter has been paid. It is, therefore, to be looked into as to when and to what extent rent had been paid and accordingly provisions of section 39 were complied within accordance with the law as laid down by the Hon''ble Supreme Court in the recent decision in Vineet Kumar''s case (supra). The petition, therefore, deserves to be allowed and the matter requires to be remanded to the court of the Addl. District Judge for deciding the revision petition afresh.

The petition is accordingly allowed and the judgment dated 11.1.1983 passed by the learned Vllth Addl. District Judge, Lucknow, vide Annexure No. 7 (typed copy Annexure No. 8) is quashed. The matter shall be sent back tothe learned Vllth Addl. District Judge, Lucknow, who will hear the matter again and decide it in accordance with the observations made in the body of this judgment and particularly in the light, of the decision, of the Hon''ble Supreme Court contained in the aforesaid Vineet Kumar''s case. In the circumstances there shall be no order as to costs of these proceedings.

(Petition allowed)