Priambada Tiwari and another vs J.M.Ghoshal

Deoki Nandan, J.

The several issues on which the parties went to trial in the suit, giving rise to this second appeal, do not survive for consideration any longer. The only question which arises for consideration is whether the lower appellate Court was justified in refusing relief to the defendantappellants against eviction from the accommodation in suit under Section 39 read with Section 40 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.

The accommodation, to which the suit relates was not governed by the U. P. (Temporary) Control of Rent and Eviction Act, 1947. The suit was filed when that Act was in force, being suit No. 90 of 1969. It was decreed by the trial court on 258''971 for the defendants'' eviction from the accommodation and for recovery of Rs 1645/ ate arrears of rent for the period November T96R to May 1969 and mesne profits amounting to Rs. 15.60 up to the date of suit Damages amounting to Rs. 53440 were awarded for nuisance. Pendente lite and future mesne profits were decreed at the rate of Rs. 235/ per month. There was a further decree for recovery of Rs. 100/per month as pendente lite and future damages in respect of garagaing motor car. The defendants appealed to the district Court. The appeal was still pending when the U. P. Act No XIII of 1972 was enforced with effect from 1571972. The lower appellate Court confirmed the entire decree except for the modification that the damages for garaging the car were reduced from Rs. 100/ p. m. to Rs. 10/ p. m The sum of Rs. 11,993.20 had already been deposited by the defendantappellants upto 1591972 towards the decree and the amount of Rs. 235/per month was continued to be deposited thereafter under the interim orders of the lower appellate Court Some of the amount deposited was allowed to be withdrawn and some of it was placed in fixed deposit with Bank. The lower appellate Court reiected the contention of the defendantappellants that they were entitled to the benefit of Section 39 read with Section 40 of Act No. XIII of 1972 It proceeded on the footing that the Act must be deemed to have come into force in respect of the accommodation in question on 14197 6 which was the date of the expiry of ten years from the date of the completion of its conductions. According to the lower appellate Court, besides the sum of Rs. 11, 993.20 deposited up to 1591972, which accounted for the full amount of rent due up to 318.1972 and the costs decreed by the trial court, the defendantappellants had deposited the rent for the subsequent period from 191972 to 141976. But, while depositing the said sum the defendantappellants had not deposited the costs of the appeal and interest within one month of 141976 and were, therefore, not entitled to the benefit of Section 39 read with Section 40 of the U. P. Act No. XIII of 1972. The lower appellate Court held that the defendantappellants could not be permitted to make up the deficiency whether with the aid of Section 5 of the Limitation Act or Section 151 of the Code of Civil Procedure, and for taking this view the lower appellate Court relied upon the decision of this Court in Shri Chand Gupta v. Madan Lal 1973 A.LJ 635.

Learned counsel for the defendantappellants urged before me that the lower appellate Court was in error. My attention was invited first to the decision of the Supreme Court in Ratan Lal Singhal v Smt. Marti Devi 1979(5) A.I.R. 595 wherein the Supreme Court ruled that ten years'' period of exemption from the applicability of the U. P. Act No XIII of 1972. under subsection (2) of Section 2 thereof, did not apply to buildings constructed and completed prior to the enforcement of the Act. It applies only to those buildings which are constructed after the enforcement of the Act. That this is the correct interpretation of the said decision of the Supreme Court is brought out by a Division Bench decision of this Court in Smt. Radha Devi v. Prescribed Authority, Agra 1980 All.C.J. 58. In this view of the matter, the construction of the building, of which the accommodation in suit forms part, having been found to have been completed on 141966, the Act must be deemed to have become applicable to this building on 1571972, the date on which the Act came into force.

The first question which, therefore, should have been raised by the lower appellate court was about the amount due on that date, viz, 1571972. The decretal amount of rent and mesne profits accruing due upto the date of the judgment of the trial Court, that is to say, upto 2581971, including the broken period of 25 days of August 197J, amounted to Rs. 7755/ at the rate of Rs. 235/ per month. The amount of costs decreed by the trial Court was Rs. 1183.20. The further amount of mesne profits for the 11 months from 181971 to 306W2 works out to Rs. 2,583/. Thus the total amount of rent which accrued due as on 171971, along with the costs decreed by the trial Court, amounted to Rs. 11, 523.20. The amount deposited upto 351972 was Rs. 10, 583.20. Thus the amount which could be said to be due on account of rent, mesne profits and coats of the trial Court from the defendantappellants as on 1571972, when the Act came into force, was Rs. 11,523.20 minus Ks. 10, 583.20 = Rs. 940/The defendantappellants did not, however, make any application for availing the benefit of Section 39 read with Section 40 of the U. P. Act No. XIII of 1972 within one month from 1571972 that is to say on or before 1581972, nor did they deposit the said balance amount of Rs. 940/(due on 171971) plus Rs. 235/. Being the rent for July 1972, and the plaintiff respondent''s costs in the lower appellate Court incurred or estimated to have been incurred upto that date. They did not however deposit Rs. 1,410/ on 1591972 which was exactly one month beyond the last date by which they could have deposited the amount, but as held in Shri Chand Gupta v. Madan Lal (supra) Sections 39 and 40 of the U. P Act No. XIII of 1972 do not contemplate the filing of any application and it was on that basis held in that case that Section 5 of the Limitation Act could not be pressed in aid for condoning the delay in making the required deposit as under those provisions.

It may here be observed that before the decision of tne Supreme Court in Ratan Lal Singhal v. Smt. Marti Devi (supra) the general belief was that the ten years'' period of exemption under subsection (2) of Section 2 of the U. P. Act No. XIII of 1972 applied also to buildings completed before the commencement of that Act and the date of the commencement of the Act "for the purposes of Section 39" was the date on which the provisions of the Act became applicable to the building in question on the expiry of ten years from the date of the completion of its construction (See R D. Ram Nath & Co. and another v. Girdhari Lal and another 1975 A.L.J. 1. The defendantappellants cannot, therefore, be blamed for not seeing to it that the full amount of rent required to be deposited under section 39 had been deposited by them on or before 1581972 and it was common case of the parties before the lower appellate court that the Act could be aid to have come into force in respect of the accommodation in suit on 141976. However, in spite of the fact that the lower appellate Court has not given the figures of the mesne profits accruing due for the period subsequent to 3181972 onwards upto 141976, yet even after taking them into account, the net result is that only the amount of rent and mesne profits at the rate of Rs. 235/ per month which had accrued due upto 141976 and the decreed costs of the trial court had been deposited by the defendantappellants in the lower Court. They had deposited nothing towards the interest or the estimated costs incurred by the plaintiffrespondent in the lower appellate Court upto that date. With regard to interest, it is possible to say that the interest did not accrue inasmuch as the amount of the decree passed by the trial Court had been deposited before 1571972 and only about two months mesne profits could be said to be due on 1571972. No amount was due on 141976 towards the mesne profits and there was no question of depositing any interest thereon. The lower appellate Court is accordingly not right in holding that interest was not deposited. The question of the estimated costs incurred by the plaintiffrespondent in the lower appellate Court, however, remains to be considered. According to the case of R. D. Ram Nath & Co. and another v. Girdhari Lal and another (supra) the tenant must estimate the costs to be incurred by the landlord in the appeal. In the present case, the landlord was not the appellant and since the appeal had recently bees filed in the lower appellate Court, when the Act came into force on 1571972, it may be that the costs incurred by the plaintiffrespondent could not be easily ascertained at that time. But, by 141976 the position had considerably altered. The plaintiffrespondent had paid considerable amounts as Court fees for withdrawing the amount of meane profits and must have paid some fees to his counsel also. While the amount of Court fees paid by the plaintiffrespondent may be ignored inasmuch as he had not put the decree into execution and Court fees is not payable under Section 11 of the Court Fees Act, except in execution proceedings, as held by this Court in Ram Bilas Rastogi v. Ram Mohan Srivastava A.I.R. 1976 All. 407 it is impossible to ignore the other costs inrurred by the plaintiffrespondent in the appeal before the lower appellate Court upto 141976 for the purposes of applying Section 39 read with Section 40 of U. P. Act No. XIII of 1972.

It thus appears chat in either view of the matter, whether the Act is held to have become applicable to the accommodation in suit on 1571972 or on 141976, the requirements of Sections 39 and 40 of the U. P. Act No. XIII of 1972 were not fully complied with by the defendantappellants.

The appeal accordingly fails and is dismissed. But, in the circumstances, I would make no order as to costs.