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Ram Bilas Rastogi Vs. Ram Mohan Srivastava - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 148 of 1972
Judge
Reported inAIR1976All407
ActsUttar Pradesh Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 - Sections 39 and 40
AppellantRam Bilas Rastogi
RespondentRam Mohan Srivastava
Appellant AdvocateH.N. Tilhari, Adv.
Respondent AdvocateS.D. Misra and ;P.S. Dwedi, Advs.
DispositionAppeal dismissed
Excerpt:
.....of section 40 of the act. ram mohan srivastava and that in the original tender the number of civil appeal was not clearly noted. it could be read as 14 of 1971, 44 of 1971 and even 64 of 1971. in the triplicate tender, however, the number of the civil appeal was clearly mentioned as 14 of 1971. but as the number of the appeal was not clearly noted in the original tender the assistant nazir concerned read the number of appeal as 44 of 1971 and wrote the same in register no. 9. learned counsel for the respondent then urged that the defendant-appellant had not deposited 'landlord's full costs of the suit' inasmuch as he had failed to deposit the amount equivalent to the court-fee which the plaintiff would be required to deposit in terms of the decree passed by the trial court on..........case; that he had applied for payment of rs. 531.45 alleged to have been deposited in regular civil appeal no. 14 of 1971 of the court of civil judge, lucknow, but his application was rejected with the remark that the said amount had not been deposited in the appeal aforesaid, and that the tender for rs. 110 did not cover the decretal amount of the trial court and costs of that court, as well as costs of the lower appellate court and damages from the date of the decree upto 15-8-1972 and costs of execution and cost incurred by him in the present appeal. he also stated that he had already filed an additional court-fee of rs. 43 on pendente lite damages and will have to pay additional court-fee as per decree of the trial court on future damages from the date of the decree till the.....
Judgment:

T.S. Misra, J.

1. This appeal by the defendant arises out of a suit for his ejectment from quarter No. 10 specified in para 3 of the plaint and for recovery of Rs. 13 as arrears of rent and Rs. 43 as damages and also for a decree for pendente lite and future damages.

2. The plaintiff had alleged that the defendant had committed default in making payment of rent for four months. A composite notice demanding the said arrears of rent and determining the tenancy was served on the defendant but he failed to comply with the same,hence a suit for the aforesaid reliefs was filed by the plaintiff on 22-4-1968.

3. The defendant contested the suit alleging that he had tendered the rent to the plaintiff but the same was refused. He also challenged the validity of the notice.

4. The trial Court found that the accommodation in question was constructed after 1-1-1951, hence the provisions of U.P. Act III of 1947 did not apply to it. Having found that the notice terminating the tenancy of the defendant was valid the trial court decreed the suit. The defendant preferred an appeal from that decree before the learned District Judge.

5. The appellate court below concurred with the trial court that the quarter in suit was constructed after 1-1-1951 and was, therefore, not governed by the provisions of U.P. Act III of 1947. It also affirmed the finding of the trial court that the notice in question was valid. The appeal was, therefore, dismissed. Aggrieved the defendant has now come up to this Court on second appeal.

6. During the pendency of the appeal U.P. (Temporary) Control of Rent and Eviction Act was repealed by U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, U.P. Act XIII of 1972 which came into force on 15-7-1972. The accommodation in question is governed by the said Act of 1972. The defendant-appellant moved an application on 10-8-1972 for permission to deposit a Sum of Rs. 110 in this Court so that the appeal be decided in accordance with the provisions of Sections 39 and 40 of the new Act of 1972 stating, inter alia, that he had already deposited full rent upto 31-3-1972 at the rate of Rs. 15 per month and also the costs of both the courts below and was ready to deposit rent from 1-4-1972 till 31-8-1972 as well as legal cost of the second appeal. Vide order dated 10-8-1972 on C. M. An. No. 514(S) of 1972 the appellant was permitted to deposit the amount at his own risk and without prejudice to the other party. In his counter-affidavit the respondent averred that he had taken out execution and the appellant had deposited a sum of Rs. 348 in the execution case; that he had applied for payment of Rs. 531.45 alleged to have been deposited in Regular Civil Appeal No. 14 of 1971 of the Court of Civil Judge, Lucknow, but his application was rejected with the remark that the said amount had not been deposited in the appeal aforesaid, and that the tender for Rs. 110 did not cover the decretal amount of the trial court and costs of that court, as well as costs of the lower appellate court and damages from the date of the decree upto 15-8-1972 and costs of execution and cost incurred by him in the present appeal. He also stated that he had already filed an additional court-fee of Rs. 43 on pendente lite damages and will have to pay additional court-fee as per decree of the trial court on future damages from the date of the decree till the date of ejectment. In his supplementary counter-affidavit the respondent alleged that the appellant was bound to deposit the court-fee and the amount of damages for the period from 24-5-1970 to 15-8-1972. The court-fee payable on the future damages for that period amounted to Rs. 51.50. Further, it was alleged that the appellant had also not calculated the costs payable to the respondent in the present second appeal and as he had failed to deposit the requisite amount within the time allowed by Section 39 of the new Act of 1972 he was not entitled to the benefit of Section 40 of the Act. The appellant in his rejoinder affidavit has given details of the payment made by him and the costs which he was liable to deposit.

7. In view of the allegations made by the parties a report of Civil Judge, Luck-now was called for. The learned Civil Judge in his report dated 8-12-1973 has pointed out that a tender for Rs. 531.45 was filed in his court on 25-9-1971 in Reg. Civil Appeal Ram Bilas Rastogi v. Ram Mohan Srivastava and that in the original tender the number of civil appeal was not clearly noted. It could be read as 14 of 1971, 44 of 1971 and even 64 of 1971. In the triplicate tender, however, the number of the civil appeal was clearly mentioned as 14 of 1971. But as the number of the appeal was not clearly noted in the original tender the Assistant Nazir concerned read the number of appeal as 44 of 1971 and wrote the same in register No. 35 but the names of the parties were correctly noted therein. The Civil Judge has, therefore, reported that the money had been deposited in Reg. Civil Appeal No. 14 of 1971 and not No. 44 of 1971 and the entries in the account register, i. e., register No. 35 were incorrectly made as No. 44 of 1971. The triplicate tender dated 25-9-1971 for Rs. 531.45 which was passed on 4-10-1971 shows that the amount in question was deposited in Reg. Civil Appeal No. 14 of 1971. This second appeal is from the judgment and decree passed in the said Civil Appeal No. 14 of 1971. The appellant had thus established that he had already deposited a sum of Rs. 531.45 in Reg, Civil Appeal No. 14 of 1971. This amount covered the arrears of rent amounting to Rs. 13 claimed in the suit, Rs. 43 as damages upto the date of the institution of the suit, Rs. 376 being the pendente lite and future damages from 22-4-1968 to 23-5-1970 and Rs. 99.45 being thecosts decreed by the trial court including additional court-fee of Rs. 47 paid on pendente lite and future damages. The appellant had also deposited in the trial court in Execution Case No. 44 of 1971 a sum of Rs. 341 by tender in compliance with the order of this Court dated 10-4-1972 passed on his stay application. This amount of Rs. 341 covered the damages for the period from 24-5-1970 to 31-3-1972 amounting to Rs. 334 and costs in Reg. Civil Appeal No. 14 of 1971 amounting to Rs. 7. Further he has deposited a sum of Rs. 110 in this Court on 11-8-1972 which covered damages from 1-4-1972 to 31-8-1972 amounting to Rs. 75 and costs of the second appeal amounting to Rs. 35. He further stated that he had thus deposited extra amounts of Rs. 7.50 and Rs. 7.40 which would cover any miscellaneous expenses in execution proceedings. For the appellant it was therefore urged that as he had deposited all the sums required to be deposited under Section 39 of the new Act the decree for eviction passed in the suit against him should be set aside.

8. Section 39 of U.P. Act XIII of 1972 provides that:--

'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 at 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.

Section 40 of the new Act of 1972 reads thus: 'Where an appeal or revision arising out of a suit for eviction of a tenant from any building to which the old Act did not apply is pending on the date of commencement of this Act, it shall be disposed of in accordance with the provisions of Section 39, which shall mutatis mutandis apply.' It was not disputed on behalf of the respondent that in case the appellant was found tohave complied with the requirements of Section 39 of the Act, the decree for eviction would not be sustainable. The learned counsel for the respondent, however, urged that as a sum of Rs. 531.45 has not been entered in register No. 35 as deposit in Reg. Civil Appeal No. 14 of 1971 the defendant would not be entitled to take benefit of that deposit for the purposes of Section 39 of the Act, I find no merits in this contention. As already pointed out a sum of Rs. 531.45 was deposited by the defendant in Reg. Civil Appeal No. 14 of 1971 as is evident from the tender (paper No. 16 B/1) on the record. It appears that the Assistant Nazir read the figure 14 as 44 and, therefore, incorrectly noted in register No. 35 that the deposit was made in Civil Appeal No. 44 of 1971. This incorrect entry made by the Assistant Nazir of the civil court in register No. 35 will not deprive the defendant ,of the benefit of Section 39 of the Act inasmuch as he cannot be penalised for any mistake committed by an official of the court and for which he was not at all responsible.

9. Learned counsel for the respondent then urged that the defendant-appellant had not deposited 'landlord's full costs of the suit' inasmuch as he had failed to deposit the amount equivalent to the court-fee which the plaintiff would be required to deposit in terms of the decree passed by the trial court on future damages for the period from 24-5-1970 to 15-8-1972 as the respondent cannot be paid the amount deposited by the appellant without paying court-fee on this amount. It was pointed out that the decree of the trial court, passed on 23-5-1970 had provided inter alia, that the plaintiff shall be entitled to get pendente lite and future damages till delivery of possession at the rate of Rs. 15 subject to payment of additional court-fee.

10. The question which thus falls for determination is as to what amount would represent 'landlord's full costs of the suit' in a pending appeal. This question finds its answer in R.D. Ramnath and Co. v. Girdhari Lal (1975 All LJ 1) in the following terms:

'The expression 'full costs of the suit' in respect of a pending suit will represent the amount of court-fee paid on the plaint and on other documents and other taxable expenses incurred by the landlord by the date of deposit together with such amount of the Advocate's fee and the fee of his clerk as is taxable on the contested scale whether any certificate of fee has or has not been filed by the date of deposit.

In case of a first appeal or revision filed against a decree or order of the trial Court it will represent the costs awarded to the landlord in the decree or order together with the amount paid as court-fee on the memorandum of appeal or revision and other documents and other taxable expenses incurred in the first appellate or revisional Court including the Advocate's fee and the fee of his clerk which are to be computed in the manner stated above.

In case of second appeal or revision filed against a decree or order of the first appellate or revisional court it will represent the costs awarded to the landlord in the decree or order of the trial Court as well as the first appellate or revisional Court together with the amount paid towards court-fee on the memorandum of appeal or revision and on other documents and other taxable expenses incurred in the second appellate or revisional Court including the Advocate's fee and the fee of his clerk which are to be computed in the manner stated above.' Similarly in Sri Chand Gupta v. Madan Lal (1973 All LJ 635) while noticing that the defendant cannot be required to do the impossible act of depositing even such costs which the plaintiff may incur subsequently, it was held that the expression 'full costs of the suit' under Section 39 if given a reasonable interpretation would mean full costs of the suit as may have been incurred by the plaintiff on or before the date on which the deposit is made under Section 39. On this construction the appellant was required to deposit the entire amount of costs which the plaintiff-respondent had actually incurred by the date on which the deposit was made if he wanted to take the benefit of Section 40 read with Section 39 of the new Act. Admittedly, the plaintiff respondent had not paid any additional court-fee on future damages for the period from 24-5-1970 to 15-8-1972. The contention of the respondent, however, was that as the decree passed by the trial court had provided that he shall be entitled to get pendente lite and future damages till delivery of possession at the rate of Rs. 15 per month subject to payment of additional court-fee, he would not be entitled to withdraw the amount of future damages from 24-5-1970 to 15-8-72 deposited by the defendant-appellant unless he pays court-fee thereon. The additional court-fee which the plaintiff would thus be required to pay on the future damages for the said period would, according to the submission, be the costs of the suit. To support of this contention the learned counsel for the respondent referred me to Section 11 of the Court Fees Act, which inter alia provides that where a decree directs an enquiry as to mesne profits from the institution of the suit and a final decree is passed in accordancewith the result of such enquiry, the decree shall not be executed until such fee is paid as would have been payable on the amount claimed in execution if a separate suit had been instituted therefor.

11. The learned counsel for the respondent pointed out that the trial court had already determined that the plaintiff was entitled to future damages at the rate of Rupees 15 per month, hence the plaintiff shall not be entitled to execute the decree for future damages until he paid court-fee thereon. True it is, that if the plaintiff would be required to execute the decree for future damages from 24-5-1970 to 15-8-72 he would have :o pay court-fee on the amount of such damages and the court can refuse to execute the decree till additional court-fee is paid but it cannot set aside the decree for future damages if the additional court-fee is not paid. The position, however, would be different in case of a deposit' made by the judgment-debtor of his own accord without the decree-holder putting the decree under execution. The amount required to be deposited under Section 39 of the new Act of 1972 is not deposited for the satisfaction of a decree passed by the trial Court. It is a statutory deposit made in terms of Section 39 of the Act. The amount is deposited to have the benefit of Sections 39 and 40 of the Act, namely to have the decree for ejectment set aside in appeal. The amount so deposited under Section 39 of the Act will not be paid to the decree-holder in the execution of the decree of the trial court. It will be available to him in consequence of the order passed under Section 40 read with Section 39 of the Act. The plaintiff would be entitled to apply for payment of the amount so deposited under Section 39 of the Act. Such an application for payment would not be a proceeding in execution of the decree so as to bring the case within the purview of Section 11 of the Court Fees Act. General Rules Civil applicable to civil courts subordinate to this Court dealing with the repayment do not require for payment of any court-fee on the amount of the deposit which the person entitled thereto may seek to recover. It will be a statutory deposit made in the case which would be payable without the decree being put to execution. No court-fee would, therefore, be payable by the plaintiff-respondent when he would seek to withdraw the amount deposited by the defendant under Section 39 of the Act, read with Section 40 of the Act which would include the amount of future damages till the date of deposit. The defendant in the instant case has, in my view, deposited 'landlord's full costs of the suit' inasmuch as the amount deposited by him represents the costsawarded to the plaintiff in the decree of the trial court as well as the first appellate court together with the amount paid towards court-fee on the memo of appeal and other documents including the court-fee which the plaintiff had already paid on pendente lite and future damages, as well as other taxable expenses incurred in the second appeal including the Advocate's fee and the fee of his clerk. The defendant appellant is, therefore, entitled to the benefit of Section 39 read with Section 40 of the new Act. The decree for his eviction from the accommodation in question has, therefore, to be set aside. Consequently, the decree for damages shall also be set aside as the appellant shall now be liable to pay rent and not damages for use and occupation of the accommodation in question.

12. In the result, the appeal is allowed, the decree passed by the court below is modified the decree for eviction of the appellant from the accommodation in question is set aside and the decree for damages is also set aside. The suit is dismissed so far as the reliefs for eviction of the defendant from the accommodation in question and the recovery of damages are concerned. The plaintiff shall be entitled to withdraw all the aforesaid amounts deposited by the defendant in the court below as well as in this court. It is made clear that the plaintiff shall be entitled to withdraw the amount of Rs, 531.45 which the defendant had deposited by tender dated 25-9-1971 passed on 4-10-1971 in Regular Civil Appeal No. 14 of 1971 but which the Assistant Nazir concerned has incorrectly noted in Register No. 35 by mentioning the number of civil appeal as No. 44 of 1971 instead of Regular Civil Appeal No. 14 of 1971.


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