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SUPREME COURT OF INDIA
A.P. SEN AND R.B. MISRA, JJ.
Vineet Kumar, Appellant
Versus
Mangal Sain Wadhera, Respondent.
Civil Appeal No. 10144 of 1983, D/- 5-1-1984.
Advocates appeared
Mr. G. L. Sanghi, Sr. Advocate, Mr. K. K. Jain, Mr. A. D. Sanger and Mr. Pramod Dayal, Advocates with him, for Appellant; Mr. J. D. Jain, Mrs. Kawaljit Kochar and Mr. S. R. Yadav, Advocates, for Respondent.
Small Cause Courts Act – Section 25 - U. P. Urban Buildings Act, 1972 - Section 20 - Rent Act, 1960 – Section 2(2), 2, 39, 20(4) - Constitution of India, 1950 - Article 136 - Societies Registration Act, 1860 - Section 12(5), 21(1-A), 24(2), 24-A, 24-B, 24-C, 29 - Landlord - Tenant - Arrears of Rent - Suit for Eviction of Tenant - Respondent filed a suit for eviction and for arrears of rent and damages for use and occupation pendente lite and future on allegation that appellant was inducted as a tenant of premises in suit on a monthly rent of Rs. 250/- that building in suit was constructed under co-operative housing scheme of State Bank of India for which Bank advanced loan - Building in suit was assessed to house and water tax and as such building was not covered and that defendant defaulted in payment of rent despite notice - Appellant therefore terminated tenancy of appellant - Whether premises which was not ten years old on date of suit and was exempted from operation of new Rent Act, can be governed by it if ten years expired during pendency of litigation - Whether on rent or free of rent, or as a guest house, by whatever name called, for occupation of persons having dealings with it in ordinary course of business - Whether new Rent Act will be attracted if building completes ten years during course of litigation - Whether by seeking benefit of S. 39 of new Act there is a change in cause of action – Held, Appellant in present case only seeks protection of new Rent Act which became applicable to premises in question during pendency of litigation – Court see no reason why benefit of new Rent Act be not given to appellant - Section 20 of new Rent Act provides a bar to a suit for eviction of a tenant except on specified grounds as provided in section - Sub-section (4) of S. 20 stipulated that in any suit for eviction on grounds mentioned in Cl. (a) to sub-s. (2) viz., arrears of rent, if at first hearing of suit the tenant in default pays all arrears of rent to landlord or deposits in court entire amount of rent and damages for use and occupation of budding due from him, such damages for use and occupation being calculated at same rate as rent together with interest thereon at rate of nine per cent per annum and landlords cost of suit in respect thereof after deducting therefrom any amount already deposited by tenant under. sub-s. (1) of S. 30, court may, in lieu of passing a decree for eviction on that ground, pass an order relieving tenant against his liability for eviction on that ground - Section 39 and 40 of new Rent Act also indicate that benefit of new Act will be given to tenant if conditions contemplated in those sections are satisfied - Section 39 also indicates that parties are entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary - Judgment and decree of High court is set aside in so far as it relates to eviction but judgment of High Court setting aside decree for arrears of rent and remanding case to trial court remains intact, and case is sent back to III Additional District Judge who will apply new Rent Act and give protection of new Act to appellant and will give him an opportunity to deposit dues contemplated by S. 39 of new Rent Act after first determining whether any amount is due from appellant towards rent as directed by High Court - Appeal allowed.
Judgment
MISRA, J. :- The present appeal by special leave is directed against the Judgment of the High Court of Allahabad dated 20th July, 1983 disposing of a revision under S. 25 of the Small Cause Courts Act arising out of suit for eviction of the appellant from. the premises in suit.
2. The respondent filed a suit for eviction and for arrears of rent and damages for use and occupation pendente lite and future on the allegation that the appellant was inducted as a tenant of the premises in suit on a monthly rent of Rs. 250/- on 7th February, 1972, that the building in suit was constructed in 1971 under the co-operative housing scheme of the State Bank of India for which the Bank advanced loan. The building in suit was assessed to house and water tax on 1st October, 1971 and as such the building was not covered by the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the new Rent Act for short), and that the defendant defaulted in the payment of rent despite notice dated 24th March, 1977. The, appellant (Respondent?), therefore terminated the tenancy of the appellant.
3. The claim was resisted by the appellant on the ground that the building in question was constructed in 1968 and that it was covered by the new Rent Act. His further stand was that rent had been cleared up to 6th April, 1977 and there was no default in the payment of rent. He also challenged the service and the validity of the notice terminating his tenancy. The appellant also claimed the adjustment of Rs. 1,000/- spent by him towards the repairs of the premises. By a later amendment it was further pleaded that the plaint having not been amended so as to bring the suit under the provisions of the new Rent Act the suit was barred by S. 20 of the Act.
4. The Third Additional District Judge negatived the defence and decreed the suit for eviction as also for recovery of arrears of rent and damages for use and occupation. The learned Judge held that the building was exempt from the operation of the new Rent Act on two grounds. The first ground was based upon sub-s. (2) of S. 2 which provides that nothing in this Act shall apply to a building during the period of ten years from the date on which its construction is completed. The second ground was based upon the proviso to sub-s. (2) of S. 2, which contemplates that where a building has been constructed substantially out of funds by way of loan or advance from the State Government, or Life Insurance Corporation of India or a bank or a co-operative society, and the period of repayment of such loan or advance exceeds the aforesaid period of ten years, then reference in this sub-section to a period of ten years shall be deemed to be a reference to a period of fifteen years or the period ending with the date of actual repayment of each loan or advance, including interest, whichever is shorter. As the last instalment of the loan was paid in March 1981, instead of ten years the building should be fifteen years old to attract the provisions of the new Rent Act. He also held that the appellant had failed to prove that he spent Rs. 1,000/- towards repairs of the premises. The learned Judge overruled the other pleas of the appellant and decreed the suit as prayed for.
5. The appellant feeling aggrieved preferred a revision in the High Court. It was contended for the appellant that the building in question had been constructed by a co-operative society and the landlord had purchased it from the society and, therefore, the view taken by the learned Judge that the building was constructed substantially out of funds obtained from the sources mentioned in the proviso to S. 2(2) of the New Rent Act was manifestly erroneous. The High Court, however, did not express any concluded opinion and rest contended by observing that it was not necessary to examine the submission in any detail or to express any concluded opinion about it for disposal of the present revision. The High Court, howe
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