Riyatullah Khan vs District Judge and Others

R.H. Zaidi, J.—By means of the present petition under Article 226 of the Constitution of India, Petitioner prays for issuance of a writ, order or direction in the nature of certiorari quashing the judgment and order dated 28.10.74 passed by Respondent No. 2 and order dated 16.4.1993, passed by the Respondent No. 1.

The relevant facts giving rise to the present petition, are that the Respondent No. 3 filed a suit for ejectment and recovery of arrears of rent with the allegations that the Petitioner was tenant in the shop in dispute since 1963 at the monthly rent of Rs. 30. The Petitioner fell in arrears of rent for more than five months, therefore, a notice of demand and termination of tenancy was served upon him calling upon to pay the arrears of rent within 30 days of the receipt of the notice and to vacate the shop in dispute. It was also stated that the shop was constructed in the year 1963, therefore, the provisions of U.P. Act No. XIII of 1972 (for short ''the Act'') had no application in the present case.

The suit was contested by tire Petitioner, pleading that the Plaintiff-Respondent No. 3 refused to receive the rent, therefore, the same was sent to him by money order. Even the money order was refused by the landlord, therefore, the rent of the shop in dispute was deposited in the court u/s 30 of the Act. No notice of demand or termination of tenancy was ever served upon him. The relationship of the landlord and tenant between the parties was also denied. The suit was, therefore, liable to be dismissed.

It appears that during the pendency of the suit, an application (15/ga) dated 14.8.72, was filed by the Petitioner stating that the rent from 19.3.70 to 19.2.72 was deposited in the court and he was ready to pay the balance arrears of rent with 9% interest with effect from 18.3.72 to 18.8.72 and a tender for depositing an amount of Rs. 338 was also submitted along with the said application claiming the benefit of Section 39/40 of the Act.

The trial court after considering the material on the record held that the shop in dispute was constructed in the year 1963, Section 39 of the Act had no application in the present case, allotment of the shop under the Act was not necessary, there existed the relationship of landlord and tenant between the parties, and notice of demand and termination of tenancy was served upon the Defendant-Petitioner, but he did not pay the rent within 30 days of the receipt of the notice. Having recorded the said findings, the trial court decreed the suit vide judgment and decree dated 28.10.74.

Aggrieved by the judgment and decree passed by the trial court, Petitioner preferred a revision u/s 25 of the Provincial Small Cause Courts Act, but the same was also dismissed on 26.7.75. Thereafter, Petitioner challenged the validity of the judgment and decree passed by the trial court in Civil Misc. Writ Petition No. 10036 of 1979. Which was allowed by this Court and the case was remanded to the revisional court for decision afresh of the issues framed by this Court vide its judgment and order dated 12.8.85.

On remand, the revisional court held that the notice of demand and termination of tenancy was served upon the Petitioner on 1.9.70, that money order was sent by the Petitioner on 7.10.70, i.e., beyond 30 days of the receipt of notice of demand, that the constructions of the shop in dispute were completed in the year 1963 and the suit was filed on 27.10.70, thus the provisions of the Act had no application on the date of filing the suit. It was also held that the Petitioner did not claim the benefit of provisions of Section 39/40 of the Act within the time prescribed under the Act and there was no proof that the requirement of Section 39 were fulfilled by him within the time prescribed under the Act. Having recorded the said findings, the revision was again dismissed by the revisional court. Petitioner, thereafter, filed the present petition, challenging the validity of the judgments and orders passed by the courts below.

I have heard learned Counsel for the Petitioner and learned Counsel appearing for the contesting Respondent.

Learned Counsel for the Petitioner vehemently urged that the Petitioner fulfilled the requirement of Section 39 of the Act as the entire arrears of rent, costs of the suit and 9% interest was deposited by the Petitioner within the time prescribed under the law, as it is evident from the material on the record, therefore, the Petitioner was entitled to the benefit of Section 39/40 of the Act. He was also entitled to the benefit of Sub-section (4) of Section 20 of the Act and the suit for ejectment and recovery of arrears of rent was liable to be dismissed. Learned Counsel further urged that the finding recorded regarding completion of construction of the shop in dispute was also not in accordance with the provision of Sub-section (2) of Section 2 of the Act and the same was, therefore, liable to be set aside.

Learned Counsel appearing for Respondent No. 3 on the other hand, vehemently urged that the findings of the court below are finding of fact, which are based on relevant evidence on the record. It was also urged that the court below was right in holding that the Petitioner was not entitled to the benefit of Section 39/40 of the Act as there was no evidence on the record to show that the requirements of Section 39 of the Act were fulfilled by the Petitioner.

I have considered the submissions made by the learned Counsel for the Petitioner as well as of learned Counsel appearing for contesting Respondent No. 3 and also carefully perused the record.

The main question involved in the case is as lo whether the Petitioner is entitled to the benefit of Section 39 of the Act, as according to the case of Respondent No. 3, the shop in dispute was constructed in the year 1963. From the record, it appears that to resolve the controversy as to whether the Petitioner was entitled to the benefit of Section 39 and Sub-section (4) of Section 20 of the Act, this Court vide its order dated 17.4.1996, directed the office to summon the record of the original suit filed in the Court of Judges Small Causes Court. In compliance of the said order, the record of the case was summoned.

Sections 39 and 40 of the Act provide as under:

Pending suits for eviction relating to building brought under regulation for the first time.-In any suit for eviction of a tenant from any building to which the old Act did not apply, pending on the date of commencement of this Act, where the tenant within one month from such date of commencement or from the date of his knowledge of the pendency of the suit, whichever be later, deposits in the court before which the suit is pending, the entire amount of rent and damages for use and occupation (such damages for use and occupation being calculated al the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord''s full cost of the suit, no decree for eviction shall be passed except on any of the grounds mentioned in the proviso to Sub-section (1) or in Clauses (b) to (g) of Sub-Section 2) of Section 20, and the parties shall be entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary:

Provided that a tenant the rent payable by whom does not exceed twenty five rupees per month need not deposit any interest as aforesaid:

Pending appeals or revisions in suit for eviction relating to buildings brought under regulation for the first time. Where an appeal or revision arising out of a suit for eviction of tenant from any building to which the old Act did not apply is pending on date of commencement of this Act It shall be disposed of in accordance with the proviso of Section 39, which shall mutatis mutandis apply.

The aforesaid provisions came to be considered by the Supreme Court in the case of Suresh Chand v. Ghulam Chisty AIR 1990 SC 97. In the said case, in Paragraph 5, it was ruled as under:

The plain reading of Section 39 makes it clear that the said Section obliges the court to refuse to pass a decree for eviction, except on any of the grounds mentioned in the proviso to Sub-section (1) or in Clauses (b) to (g) of Sub-section (2) of Section 20 if the following four requirements are satisfied.

(i) the building is one to which the old Act (The U.P. (Temporary) Control of Rent and Eviction Act, 1947, U.P. Act No. III of 1947, did not apply;

(ii) the eviction suit must be pending on the date of commencement of the Act, i.e., 151 h July, 1972;

(iii) the tenant deposits in court the entire amount of rent damages for the use and occupation of the building together with interest at 9% per annum and the landlord''s full costs of the suit; and

(iv) such deposit is made within one month from the date of commencement of the Act or from the date of knowledge of the pendency of the eviction suit, whichever is later.

The benefit of Section 39 is extended mutatis mutandis to an appeal or revision arising out of an eviction suit to which the old Act did not apply provided the said appeal or revision was pending on the date of commencement of the Act.

Learned Counsel for the Petitioner invited the attention of this Court to the application (paper No. 15-Ga), dated 14.8.72 and copies of two tenders (paper Nos. 19/Ga and 20/Ga). A reading of the aforesaid application and tenders reveals that the Petitioner applied before the trial court on 14.8.72, for permission to deposit the arrears of rent with 9% interest by means of a tender of the same day. The tender was passed by the court on 16.8.72. Thereafter, an amount of Rs. 338 was deposited on 20.8.1972. From the tender (paper No20/Ga) depositor''s copy, it is also evident that an amount of Rs. 9C for the period 19.11.71 to 18.2.92 was already deposited in the court on 25.7.92.

It is well-settled in law that the deposits made through tender relates back to the date of the presentation of challan. A reference In this regard may be made to the following cases:

Kanti Pd. Jain v. Om Prakash 1966 AU 1108; Bankey Bihari v. Gopal Das 1977 NOC 253; Daya Ram v. Virendra Kumar Goel 1977 (U.P.) RCC 227 and Ved Prakash v. Vishvya Mohan AIR 1982 SC 186.

The amount as required to be deposited u/s 39 of the Act was deposited by the Petitioner within the time prescribed under the Act. All four conditions as ruled in Suresh Chand''s case (supra) by the Apex Court, having been fulfilled in the present case. Admittedly, the old Act (Act No. III of 1947) had no application over the shop in dispute, suit was pending on 15.7.1972 and requisite amount was deposited in the court within the time prescribed under the Act. The Petitioner was, therefore, entitled to the benefit of the said Section. The observations and findings recorded by the court below to the contrary are against the documentary evidence on the record of the case and are not sustainable in law.

In view of the aforesaid discussions, it is not necessary for me to decide the question as to whether the findings recorded by the court below regarding the age of construction were not in accordance with the provision of Sub-section (2) of Section 2 of the Act inasmuch even counted from the date (year) as determined by the courts below: requisite amount was deposited well in time. It is also not necessary to decide as to whether the Petitioner is entitled to the benefit of Sub-section (4) of Section 20 of the Act.

In view of the aforesaid discussions, the judgments and decrees passed by the courts below to the extent they direct the ejectment of the Petitioner from the shop in dispute, are liable lo be set aside.

The writ petition succeeds and is allowed in part. The judgments and orders/decrees passed by the courts below to the extent they direct the ejectment of the Petitioner from the shop in dispute are quashed. Respondent No. 3 is permitted to withdraw the amount of rent, etc., deposited by the Petitioner in the court. However, the parties are directed to bear their own costs.