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1988 Supreme(All) 575
High Court Of Allahabad
K.C.Agrawal, J.
Indira Pathak - Appellant
Versus
II Additional District Judge, Allahabad - Respondent
Civil Misc. Writ No. 16968 of 1988
Decided on : Nov 25,1988
B.D.Mandhyan, Gyan Prakash
The decision of the Supreme Court in Shiv Kumar v. Jawahar Lal Verma, which was later in point of time, was binding on the court and that the observations made in that case regarding the applicability of Section 39 of the Act were not obiter.
Headnote:
RENT CONTROL - U. P. Act No. XIII of 1972 - Section 39 - Applicability - Whether Section 39 applies to a suit for eviction filed before the Act came into force but decided after the Act became applicable - Held, yes.
Fact of the Case:
The plaintiff filed a suit for eviction of the defendant from the suit premises, claiming that the premises were constructed and completed on 1-4-1973 and, therefore, the U. P. Act No. XIII of 1972 (the Act) did not apply. The defendant claimed that the Act applied and that a decree for ejectment could not be passed without a ground mentioned in Section 20 of the Act being fulfilled or established. The suit was decreed ex-parte for eviction and recovery of damages for use and occupation. The defendant filed a revision under Section 25 of the Provincial Small Cause Courts Act, which was allowed by the Additional District Judge, relying on the decision of the Supreme Court in Vineet Kumar v. Mangalsen Badhera. The plaintiff filed an application for review of the judgment of the Additional District Judge, which was allowed. The defendant filed a writ petition challenging the order of the Additional District Judge allowing the review application.
Finding of the Court:
The court held that the decision of the Supreme Court in Shiv Kumar v. Jawahar Lal Verma, which was later in point of time, was binding on the court and that the observations made in that case regarding the applicability of Section 39 of the Act were not obiter. The court also held that the controversy regarding the adjustment of the amount paid as premium to the representative of the landlord was a question of fact that could not be resolved without evidence and that the court below should have permitted the parties to adduce evidence on the same.
Issues: 1. Whether Section 39 of the U. P. Act No. XIII of 1972 applies to a suit for eviction filed before the Act came into force but decided after the Act became applicable. 2. Whether the observations made by the Supreme Court in Shiv Kumar v. Jawahar Lal Verma regarding the applicability of Section 39 of the Act were obiter.
Ratio Decidendi: 1. The court held that the decision of the Supreme Court in Shiv Kumar v. Jawahar Lal Verma, which was later in point of time, was binding on the court and that the observations made in that case regarding the applicability of Section 39 of the Act were not obiter. 2. The court also held that the controversy regarding the adjustment of the amount paid as premium to the representative of the landlord was a question of fact that could not be resolved without evidence and that the court below should have permitted the parties to adduce evidence on the same.
Final Decision: The court allowed the writ petition, set aside the orders of the Additional District Judge dated 21-7-1984 and 19-8-1988, and sent the revision back for a fresh decision in the light of the observations made by the court.
K.C.Agrawal, J.
1. This petition under Article 226 of the Constitution has been filed by Smt. Indira Pathak for quashing the order of II Additional District Judge dated 19-8-1988, allowing the review application of plaintiff-respondent no. 3, Parmarth Prakash, the landlord.
2. Briefly stated the facts are these Suit no. 393 of 1981 was filed by Parmarth Prakash through his father, Dr. Gyan Prakash, Advocate, for the following reliefs : (i) that a decree be passed in favour of the plaintiff against the defendant directing eviction of the defendant from the accommodation in suit and delivery of its actual vacant possession to the plaintiff. (ii) that a decree be passed in favour of the plaintiff against the defendant for recovery of Rs.199.17 being the amount of rent due from the defendant. (iii) that a decree be passed in favour of the plaintiff for recovery of Rs.8.33 per day since 13-9-1981 as compensation for use and occupation till the date of eviction of the defendant from the suit accommodation-requisite court fee on which shall be paid in the execution side.
He claimed the premises 22-C, Sardar Patel Marg, Allahabad was constructed and completed on 1-4-1973 within the meaning of U. P. Act No. XIII of 1972, therefore, the said Act had no application. His claim was that tenancy was although at will, but the plaintiff gave a notice by registered post dated 11-8-81, as a result of which the tenancy stood terminated on 18-9-1981. He claimed that the defendant was liable to pay at the rate of Rs.8.33 per day since 18-9-81 as compensation for use and occupation till the date of her eviction. The suit for recovery of Rs.1699.17 was filed on 18-9-1981.
3. The defendant-petitioner filed a written statement claiming that U. P. Act XIII of 1972 since applied, on decree for ejectment could be passed without a ground mentioned in Section 20 of the said Act being fulfilled or established. On 15-7-83, the plaintiff applied for amendment of the plaint under Order VI Rule 17 of the Code of Civil Procedure, claiming water tax. Paragraph 1 (c) of the amendment application reds as under :-
"That thus the U. P. Act XIII of 1972 became applicable to the accommodation in suit with effect from 16-2-83 and the defendant is liable to pay water tax also, which is 12% of the assessed rental, i. e. Rs. 6 p. m. from 16-2-83."
4. The suit was decreed ex-parte on 21-7-84 by the Judge Small Cause Court for eviction as well as for the recovery of damages for use and occupation at the rate of Rs.250/- per month with effect from 18-9-1981.
The defendant, Smt. Indira Pathak, preferred a revision under Section 25 of the Provincial Small Cause Courts Act, which on being transferred, was allowed by Additional District Judge on 18-5-1987, relying on the decision of the Supreme Court in Vineet Kumar v. Mangalsen Badhera, 1984 AWC 128. In this case, the Supreme Court held :
"The premises, which was not ten years old on the date of the suit and was exempted from the operation of new Rent Act, can be governed by it after ten years expired during the pendency of the litigation. The moment a building becomes ten years old to be reckoned from the date of completion the Rent Act would become applicable. ".
5. The Supreme Court distinguished the decision given in O. P. Gupta v. Drigvijendrapal Gupta, 1982 AWC 226, in which the rights of the parties were decided on the basis of law as it stood on the date of the institution of the suit. The Supreme Court while distinguishing Vineet Kumar v. Mangalsen Badhera (supra) Held :
"It was not at all necessary in that case to deal with the question whether the appellant would be entitled to the benefit of Section 39 as the building had not become ten years' old on the date when the revision petition was heard. In the instant case, however, the building had become ten years' old during the pendency of the suit, therefore, the question assumes importance in the present case."
6. Relying on that decision, the learned Additional
