JUDGEMENT
M. N. Shukla, A.C.J. -
(1.)AS a puisne Judge I had directed that the papers of this case be laid before Hon'ble the Chief Justice for constituting a larger Bench to decide the same. By a quirk of fortune it has now come to me as the Acting Chief Justice of this Court to refer the case for hearing to this Bench of which I also happen to be a member.
(2.)THE salient facts giving rise to this writ petition are that the petitioner filed a suit for eviction of Gayn Chand, respondent No. 1, on the ground of default in payment of rent, sub-letting and renunciation of his character as tenant. THE suit was decreed by the Judge, Small Cause Court on 22-7-1975. THE tenant-respondent preferred SCC Revision No. 81 of 1975 which was dismissed by the revisional court on 19-8-1976 and the decree for eviction and arrears passed by the trial court was upheld. THE tenant thereafter went in revision to the High Court and the impugned order was quashed on 12-7-1978 and the case was remanded for fresh consideration of the question as to whether the tenant was entitled to the benefit of Section 39 of U. P. Act No. 13 of 1972 (hereinafter referred to as the Act).
The central points of controversy- between the parties were : the date of the construction of the premises in dispute and also the date when it came within the purview of U. P. Act No. 13 of 1972. The High Court in its judgment held that the premises would be deemed to have been constructed on 1-4-1966, and, therefore, the aforesaid Act would be applicable to it ten years thereafter. Accordingly the High Court directed the lower court to decide as to whether the amount due and required under section 39 of the Act was deposited by the tenant by 31-3-1976. After remand made by the High Court the revision was decided by the II Additional District Judge, Muzaffarnagar by his order dated 29-11-1978 which is impugned in the present writ petition. The effect of that decision was that the tenant's revision stood allowed and the decree passed by the trial court was modified in this respect that the suit for ejectment was dismissed and a decree only for recovery of rent etc. was passed.
Thus, the sole point arising in the case is as to whether the tenant respondent had complied with the provisions of section 39 of the Act i. e. whether the requisite deposit had been made by him on or before 31-3-1976. Before we refer to other relevant facts and the findings recorded by the court below in its impugned judgment it is necessary to advert to one important circumstance. It appears that during the pendency of the suit for ejectment the petitioner (Plaintiff) sought permission to file some papers but her application for such additional evidence was rejected by the II Additional Munsif by his order dated 23-3-1971. Against this order the plaintiff filed Revision No. 9 of 1971. This revision was allowed with costs on 8-8-1972. The formal order prepared thereafter showed that the plaintiff-revisionist was awarded Rs. 132.10 as costs. It was urged on behalf of the present petitioner that when making a deposit under section 39 of the Act it was the duty of the tenant to deposit the amount of Rs. 132.10 also before the relevant date and since this was not done, the tenant was not entitled to the benefit of section 39 of the Act. Sri A. K. Yog appearing for the respondent-tenant placed strong reliance on a single Judge decision of this Court in Kamta Prasad v. Benari Lal, AIR 1977 Alld. 109 in which it was held that a deposit had to be made in the revisional court only when a revision against the final order was pending and not where a revision against some interlocutory order was pending. It was observed in that case :
"If an appeal or revision is directed against an ancillary or supplemental proceeding which does not entitle the appellate or revisional court to go into the merits of the case or to touch a decree for eviction, if any, which has already been passed in the suit, there will be no occasion for it to consider the question whether a decree for eviction should be passed, much less will there arise an occasion for the appellate or the revisional court to pass a decree for eviction on any of the grounds mentioned in the proviso to sub-section (I) or in clauses (b) to (g) of sub-section (2) of Section 20."
(3.)IT was, therefore, contended that assuming that the costs awarded in the revision arising out of an interlocutory order were not deposited, that could not be considered as a case of absence of deposit in accordance with section 40. In the instant case Revision No. 9 of 1971 was decided on 8-8-1972 and costs were awarded. Curiously enough, on the same date i. e. 8-8-1972 the respondent-tenant had deposited rent, costs of the suit and interest etc. but according to the petitioner the costs awarded in Revision No. 9 of 1971 were not deposited. On the other hand, it was pointed out on behalf of the respondent-tenant that these costs were not included in the decree passed in the suit. The Court asked for a report in this case from the District Judge, Muzaffarnagar who submitted a reply stating that the costs awarded in Revision No. 9 of 1971 were not shown in the decree of SCC Suit No. 913 of 1969 Smt. Phoolwati v. Gyan Chand. Two contentions were raised on behalf of the respondent-tenant. Firstly, it was submitted that according to the ratio of Kamta Prasad's case (Supra) such costs of the revision could not be legally included in the deposit contemplated by section 40 of the Act. Secondly, on facts also according to the respondent-tenant the position was that the amount deposited by the respondent tenant on 8-8-1972 actually covered the costs of Revision No. 9 of 1971 as well.
So far as the second contention is concerned, namely, that the amount of costs pertaining to Revision No. 9 of 1971 was not deposited within time, we are of the opinion that this is a question of fact on which the finding recorded by the court below is conclusive. It has been found as a fact that the respondent (tenant) failed to deposit the amount of Rs. 132.10. Hence, this matter cannot be allowed to be raised at this stage and this Court in the exercise of its writ jurisdiction would be reluctant to go behind that finding. However, the first point raised on behalf of the respondent-tenant merits serious consideration. On behalf of the petitioner it was strenuously contended that there was a legal obligation on the respondent to deposit the amount of costs referred to above while making a deposit under section 40 of the Act. On the other hand, the learned counsel for the respondent-tenant has argued that according to Kamta Prasad's case (Supra) such costs were alien to the deposit required to be made under section 40, because the expression "full costs of the suit" used in Section 39, which 'mutatis mutandis' applied to a case under section 40 also, would include only the costs of a revision or appeal arising out of the final decree or order passed in the suit and not the costs of a revision or appeal arising out of any interlocutory order. This proposition of law which has been laid down in Kamta Prasad's case (supra), however, appears to us to be of doubtful correctness. In the case of R. D. Ram Nath & Co. v. Girdhari Lal 1975 AWC 139 a Division Bench of this Court while referring to the deposit required to be made in the case of an appeal or revision observed as under :
"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".
The words "other taxable expenses incurred" mentioned in the above extract are significant. They indicate that where expenses have been incurred in a revision, they are legally taxable. They have to be included in the deposit irrespective of the fact whether they are actually shown in the decree or formal order etc. prepared in the case. It is noteworthy that section 39 of the Act speaks of "the landlord's full costs of the suit" and not to costs awarded to the plaintiff in the suit. The Legislature has also eschewed the use of such words as costs of the decree for eviction which cou!d restrict the meaning to those proceedings only which directly resulted in eviction. In our opinion the plain meaning of "full cost of the suit" is not only cost of the decree for eviction and the revision or appeal arising out of it but also the cost of such other incidental proceedings as are directly triggered off by the suit for eviction. Such revision is without doubt an offshoot of the suit itself. The rationale of this interpretation is that such proceedings also arise out of the suit for eviction and before the landlord is eventually denied the fruits of his suit for eviction, he must atleast be assured repayment of all the expenses legitimately incurred by him in such litigation. The conditions are twofold, firstly such proceedings must have directly arisen out of the suit and secondly such costs must be taxable according to law. The fact as to whether they are shown in the decree or not would not make any difference.
Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.