Ram Prakash vs IIIrd Additional District Judge and Others

V.K. Khanna, A.C.J.

The present writ petition, which was heard by a learned Single Judge, has been referred to a Division Bench by the order of Hon''ble the Chief Justice, as the learned Single Judge had taken a view contrary to the view taken by another learned Single Judge in Civil Misc. Writ No. 16968 of 1988 Shrimati Indra Pathak v. IInd Additional District Judge Allahabad decided on 25th November, 1988.

The brief facts for the purposes of deciding the present writ petition are that Respondent No. 3, Shrimati Meera Devi, filed suit No. 1038 of 1975 in the Court of Judge Small Causes Agra for the relief of arrears of rent and ejectment of the Petitioner on the ground that the shop in question was not within the ambit of U.P. Act No. 13 of 1972 (hereinafter referred to as the "Act") and that the Petitioner was defaulter in the payment of rent and was thus liable to ejectment as his tenancy has been terminated u/s 106 of the Transfer of Property Act by giving a valid notice.

The aforesaid suit was contested by the tenant-Petitioner Ram Prakash on the ground that the suit was within the ambit of the Act and in the absence of statutory grounds u/s 20 of the Act the suit was not maintainable. It was further pleaded that shop in question was let out to the Petitioner for manufacturing purposes and, therefore, notice was also invalid.

The Judge, Small Causes Court hearing the suit decreed the same. The tenant Petitioner thereafter filed Civil Revision No. 265 of 1978 u/s 25 of the Provincial Small Causes Court Act which too was dismissed. The present writ petition has been filed challenging the aforesaid two orders passed by the Judge, Small Causes Court and the Revisional Court.

The contentions were raised before the learned Single Judge, the first being that the Act became applicable to the premises in dispute in the year 1980 and consequently the suit for ejectment could not have been decreed as it was barred u/s 20 of the Act. The second contention was that the Petitioner was entitled to the benefit of Section 39 of the Act and the revisional court has erred in not going into that question.

Learned Counsel for both the parties relied upon the following five decisions Of Hon''ble Supreme Court in support of their respective contentions:

(i) Om Prakash Gupta v. Dig Vijendrapal Gupta 1982 (1) ARC 391:

(ii) Vineed Kumar v. Mangal Sain Wadhere 1984 (1) ARC 265:

(iii) Nand Kishore Marwah v. Smt. Samundari Devi 1987 (2) ARC 361:

(iv) Atma Ram Mittal v. Ishwar Singh Punia 1988 (2) ARC 557 : and

(v) Shiv Kumar v. Jawar Lal Verma 1988 (2) ARC 465.

The learned Single Judge after consideration of the cases mentioned above came to the conclusion that the controversy is covered by the latest decision of the Supreme Court in the case of Atma Ram Mittal (supra) and, therefore, it was held that the pendency of the litigation will not effect the right of the parties which existed on the date of the suit and in case the premises which was not 10 years old on the date of the suit and was exempt from the operation of the Act, can not be governed by the provisions of the Act if 10 years expired during the pendency of the litigation. With regard to the question of applicability of the provisions of Section 39 of the Act, the learned Single Judge held that the latest case of the Supreme Court in the case of Nand Kishor Mawah (supra) will apply and that Section 39 of the Act would only apply to those suits which were pending on 15th July, 1972. It was held that in the case of Shiv Kumar (Supra) the question was not specifically decided but was left open and Section 39 of the Act was discussed as an alternative argument raised on behalf of the Appellant before the Supreme Court, It was held by the learned Single Judge that the contentions raised by the Learned Counsel for the Petitioner have thus no substance. The learned Single Judge, however, in view of the decision of another learned Single Judge in the case of Shrimati Indra Pathak (supra), who took a contrary view, did not finally adjudicate the petition but made an order that the papers may be laid before Hon''ble the Chief Justice for constituting a larger Bench for decision of the writ petition.

The precise question came up for consideration before the Supreme Court in the case of Ramesh Chandra Vs. IIIrd Additional District Judge and others, , wherein the Supreme Court after reviewing all the previous authorities held:

Yet another contention urged by the Learned Counsel for the tenant on the strength of Vineet Kumar Vs. Mangal Sain Wadhera, is that inasmmuch as the statutory period of ten years expired purring the pendency of the suit, the Act became applicable and the suit must be disposed of only in accordance with the provisions of the Act and in particular Sub-section (2) of Section 20. This decision has, however, been explained in a subsequent decision in Nand Kishore Marwah and Others Vs. Samundri Devi, wherein it has been held that the law applicable on the date of the institution of the suit alone governs the suit and the mere fact that the statutory period of 10 years expires during the pendency of the suit appeal/revision, the Act does not become applicable. It was held that the suit has to be, tried and decided without reference to the Act. We are in respectful agreement with the view expressed in Nand Kishore Marwah.

The same view has been taken by the Supreme Court in a recent decision in the case of Bhols Nath Varshney (since dead) through his L. Rs, v. Mulk Raj Madan 1994 (1) ARC 265.

In view of the law declared by the Supreme Court in the aforesaid cases, we are thus of the opinion that the first contention raised by the Learned Counsel for the Petitioner has no substance as the provisions of the Act could not be made applicable to the suit and the suit could not be held as barred u/s 20 of the Act.

On the second question, we are in respectful agreement with the learned Single Judge. The Supreme Court in the latest case of Bhola Nath Varshney (supra) reviewed all the previous authorities of the Supreme Court and has approved the observations made by the Supreme Court in the case of Om Prakash Gupta (supra) to the following effect:

...In view of Sub-section (2) of Section 2 of the Act, the Act is not applicable to a building which has not a standing of 10 years and if the Act itself was not applicable, it would be absurd to say that Section 39 thereof would be applicable.

It was also held that the case of Suresh Chand Vs. Gulam Chisti, , in which the following observations were made was also approved:

it, therefore, seems to us that the legislature desired to limit the scope of the application of Section 39 and 40 to suits, appeals and revisions on the date of commencement of the At, i.e. 15th July 1972, relating to buildings to which the old Act did not apply and to which the new Act was to apply forthwith and not at a later date.

In our opinion the second contention raised by the Learned Counsel for the Petitioner has also got no substance.

No other contention has been raised.

For the reasons stated above, we are of the opinion that the view taken by the learned Single Judge in the case of Srimati Indira Pathak (supra) does not lay down the correct law in view of the latest decision of the Supreme Court.

The Petitioner is occupying the shop in dispute since a long time and in the interest of justice we feel that in case the Petitioner pays the entire decretal amount and furnishes an undertaking in the shape of an affidavit before the Judge Small Causes Court, Agra within one month from today stating therein that he shall hand-over the vacant possession of the shop in dispute within a period of six months from today to the Plaintiff Respondent, the decree for ejectment will remain stayed till 13th October, 1994. In case of failure of furnishing the undertaking within the time allowed, the decree-holder will be entitled to execute the decree.

For the reasons stated above the present writ petition falls and is accordingly dismissed.

An application was moved after pronouncement of the judgment on 18th April, 1994. After hearing the Learned Counsel appearing for both the parties a separate judgment has been given on the prayer made on that application. The judgment given on 23rd April, 1994 shall form part of this judgment.

The Petitioner has filed the present application stating that the Learned Counsel for the Petitioner bad raised two questions:

(i) Whether provisions of Section 39 of U.P. Act No. 13 of 1972 will be applicable if during the pendency of the suit the Act becomes applicable?

(ii) If Section 39 does not apply, whether Section 20(4) of the Act will be applicable?

It is urged that in the Judgment delivered on 18th April 1994 by us the second question has not been considered.

In the judgment the reference has already been made about the decision of the Supreme Court in Ramesh Chandra Vs. IIIrd Additional District Judge and others, , and paragraph 12 of the said decision has been quoted which specifically deals with the question of applicability of Section 20 of the Act.

In Vineet Kumar v. Mangai Sain Wadhera 1984 (J) ARC 275, the Supreme Court took the view that if during the pendency of the suit the Act becomes applicable, the provisions of Section 20 of the Act shall become appliable.

In Nand Kishore Marwa v. Smt. Samundari Devi 1987 (2) ARC 361, the Supreme Court again considered this aspect and took the view that the bar of Section 20 of the Act will be applicable only at the time of institution of the suit Itself and, therefore, if the provisions of the Act were not applicable at the time of institution of the suit and during the pendency of litigation even if ten years expired, the restriction will not be attracted as the suit has been instituted within ten years and, therefore, restriction as provided for in Section 20 cannot be attracted.

In Atma Ram Mittal v. Ishwar Singh Punia 1988 (2) ARC 557, the Supreme Court again considered this aspect and made the following observations:

If the immunity from the operation of the Rent Act is made and depended upon the ultimate disposal of the case within the period of exemption of 10 years which is in reality an impossibility, then there would be empty reasons. In our opinion, bearing in mind the well -settled principles that the rights of the parties crystalise to the date of the institution of the suit as enunciated by this Court in Om Prakash Gupta v. Dig-Vijendrapal Gupta (suprs), the meaningful construction must be that the exemption would apply for a period of ten years and will continue to be available until suit is disposed of or adjudicated. Such suit or proceeding must be instituted within the stipulated period of 10 years. Once rights crystalise the adjudication must be in accordance with law.

These decisions were considered in the decision of Ramesh Chandra (supra).

Learned Counsel for the Petitioner has placed reliance upon the decision Reghunath Dayal v. District Judge Etah 1991 (1) ARC 376. In that case it was urged that the tenant was entitled to the benefit of Section 20(4) of the Act if during the pendency of the suit the Act hat become applicable. The Court repelled the contention taking into consideration the facts of the case and held that the tenant did not make deposit as required u/s 20(4) of the Act. The question was not decided as to whether the provisions of Section 20 of the Act will be applicable if the Act becomes applicable during the pendency of the litigation. The view of the Supreme Court in the case of Ramesh Chandra (supra) has clearly laid down that if the Act is not applicable on the date of institution of the suit none of the provisions of the Act will be applicable if during the pendency of the litigation the Act becomes applicable. As Section 20 of the Act itself will not be applicable the provisions of Section 20(4) of the Act cannot be attracted. Section 20 of the Act puts a restriction in filing the suit, Section 20(2)(a) of the Act provides that if a tenant has failed to pay arrears of rent for four months after the service of notice of demand on him, he shall be liable for eviction. If a suit has been filed on such ground, a tenant may be relieved from eviction if he deposits the amount on the date of first hearing of the suit. When the Act itself is not applicable on the date of filing of the suit, the landlord is not required to give a notice of demand for payment of rent and to file a suit on the ground of default as contemplated u/s 20(2)(a) of the Act The applicability of the provisions of Section 20(4) of the Act will not be attracted in case the suit is not instituted on the ground mentioned in Section 20(2)(a) of the Act.

In view of the above, the present application filed-by the Petitioner is rejected.