SAMAR PAL SINGHversusCHITRANJAN SINGH

                        [2015] 12 S.C.R. 798


A                        SAMAR PAL SINGH
                                   v
                        CHITRANJAN SINGH
                   (Civil Appeal No. 7988of2015)
B
                       SEPTEMBER 28, 2015
          [DIPAK MISRA AND PRAFULLA C. PANT, JJ.]

        Uttar Pradesh Urban Buildings (Regulation of Letting,
c Rent and Eviction) Act, 1972: s.20(4) and its proviso- Eviction
  suit - Non-payment of rent - Tenant deposited arrears of
  rent, interest etc. in the court - Trial court passed eviction
  decree - High Court set aside the eviction decree on the
  ground that tenant was entitled to protection provided u/sub-
D section (4) of s.20 as the properties acquired by tenant were
  commercial - On appeal, held: A building which can be used
  for residential as well as commercial purposes cannot be
  said to be excluded from the clutches of proviso to sub-
  section (4), if built, or acquired in vacant state within limits of
E the municipal area in which the house from which eviction is
  sought by the landlord-As such, the High Court erred in law
  in reversing the eviction decree.

          Allowing the appeal, the Court
F
       HELD: 1. Clause (a) of sub-section (2) of Section 20
  of U.P. Act No. 13 of 1972 allows a landlord to seek
  eviction of tenant from a building after determination of
  his tenancy, on the ground that the tenant is in arrears
G of rent for not less than four months, and has failed to
  pay the same to the landlord within one month from the
  date of service of notice of demand upon him. But sub
  section (4) of Section 20 protects the tenant from decree
  of eviction if he deposits entire arrears of rent with nine
H                                 798
      SAMAR PAL SINGH v CHITRANJAN SINGH                   799



percent interest and costs before date of first hearing in A
the suit. From the language of sub-section (4) of Section
20, it is clear that under the proviso it is provided that
nothing in the sub-section could apply in relation to a
tenant who or any member of whose family has built or ·
has otherwise acquired in a vacant state, or has got B
vacated after acquisition, any residential building in the
same city. The High Court has held is that the proviso
deprives the tenant of the protection under sub-section
(4) only if he has acquired residential building. The
evidence on record clearly showed that only property C
no. 621 and property no. 42 were shops. The record
reveals that property no. 43 consists of two rooms, one
hall on the ground floor, and one room with Sehan on
the first floor and property no. 72 consists of five rooms.
                                                            0
There is no specific finding that the nature of these two
buildings is exclusively commercial. The High Court has
erred in law by treating these two properties as
commercial without there being evidence to that effect.
The building in question was let out for residential-cum- E
commercial purposes. It cannot be said that object of
sub-section (4) of Section 20 is to protect those tenants
who have built, or acquired in vacant state a house which
can be used for residential as well as commercial
purposes. If word "residential" mentioned in the proviso F
is taken to mean what has been interpreted by the High
Court, the object of the proviso would get defeated. As
such, the High Court has erred in law iri reversing the
eviction decree passed by the Judge Small Cause Court.
[Paras 8, 12, 13] [802-F-G; 804-E-H; 805-A-C, E]            G    '·

     CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7988 of 2015
     From the Judgment and Order No. dated 20.12.2011 of
                                                           H
800        SUPREME COURT REPORTS                   [2015] 12S.C.R.


A the High Court of Judicature atAllahaba.d in Civil Revision No.
  8of1990                                ·
           Dinesh Kumar Garg, Dhananjay Garg, Deepak Mishra,
      Abhishek Garg,Advs. for the Appellant.
 8        Nikhil Jain, Adv. for the Respondents.

          The Judgment of the Court was delivered by

        PRAFULLA C. PANT, J. 1. This appeal is girected
 c against judgment and order dated 20.12.2011, passed by the
   High Court of Judicature at Allahabad in Civil Revision No. 8
   of 1990 whereby the revision filed by the defendant No.1 is
   allowed, and order of eviction against the tenants passed by
   Judge, Small Causes Court/Xth Additional District Judge,
 D Meerut, is set aside.

           2. We have heard learned counsel for the parties and
      perused the papers on record.

          3. Brief facts of the case are that plaintiff No.1/appellant
 E is owner and landlord of house bearing municipal no. 831 (old
   no. 446), situated in Mowana, District Meerut. The house was
   let out to Nawab Singh (father of the respondents) and a rent
   note (Annexure P-2) was executed on 15.02.1975. The building
 F under lease consists of ground floor used for commercial
   purposes and the first floor for the residential purposEf. It was
   pleaded by the plaintiffs that the defendants stopped payment
   of rent of the building, after August, 1981. Consequently, a
   notice on 16. 08.1982 was served on the defendants, and when
 G they failed to pay rent within one month of service of notice, a
   suit for eviction and recovery of arrears of rent was filed by the
   plaintiffs before Judge, Small Causes Court/District Judge,
    Meerut.

           4. Only defendant no.1 (respondent before us) contested
 H
            SAMAR PAL SINGH v CHITRANJAN SINGH                              801
                   [PRAFULLA C. PANT, J.]

 the suit and filed written statement. It is admitted that the plaintiff/   A
 appellant is the landlord of the house in question. It is also
 admitted that property was let out to Nawab Singh, father of
 answering defendant, on rent at the rate of Rs.440/- per month.
 However, it is denied that there was any default in payment of
 rent, on the part
                 ..
                    of the defendants. It is stated that no notice of       B
 demand of arrears of rent and termination .of the tenancy was
 served on the defendantS. In the additional pleas, the answering
 respondent has stated that the rate of rent was only Rs. 200/-
 per month which was paid up to December, 1981 to Kishan
 Pal Singh (father of plaintiff no.1 ). It .is further pleaded that         C
thereafter, the rent was not accepted by the landlord. It is
pleaded that answering defendant tendered amount of Rs.
20,000/- before the trial court in May, 1984 which included
arrears of rent, nine percent interest and costs. As such, in
                                                                            0
view of the provision contained in sub-section (4) of Section
20 of Uttar Pradesh Urban Buildings (Regulation of Letting,
Rent and Eviction)Act, 1972 (for short "U.P. Act No. 13of1972"),
the defendants are protected from the decree of eviction, and
the suit is liable to be dismissed.
                                                                            E
      5~ The trial court framed following issues on the basis of
the pleadings of the parties:-
      "1.     Whether defendants are in arrears of rent from
              01.09.1981 and have committed default?                        F
      2.      Whether rate of rent is Rs.440/- per month as
              alleged by the plaintiff or is Rs.200/- per month as
              alleged by the defendant?
      3.      Whether the plaintiff has served valid notice upon G
              the defendants u/s 106 Transfer of Property Act?
      4.      Whether defendant is entitled to the benefits of the
              provisions of Section 20 (4) of the U.P. Act 13 of
              1972?
                                                                            H
802       SUPREME COURT REPORTS                      [2015} 12 S.C.R.


A         5.    To what relief, if any, is the plaintiff entitled?"
           6. The parties led their oral and documentary evidence
   before the trial court. After hearing the parties, all the issues
   were decided in favour of the plaintiffs, and the suit was
 8 decreed for ejectment of the defendants from accommodation
   in question, and also for arrears of rent amounting Rs.5,632/-
   a nd mesne profits at the rate of Rs.440/- per month till
   dispossession of the defendants. Aggrieved by said judgment
   and decree dated 06.12.1989, passed in SCC Suit No. 5 of
 c 1983 by Judge, Small Causes Court/ Xth Additional District
   Judge, Meerut, Civil Revision was filed under Section 25 of
    Provincial Small Causes CourtAct, 1887 which was allowed
    by the High Court vide impugned order, challenged before us,
    in this appeal.
 D
           7. The High Court has not disturbed the findings of trial
    court on issue Nos. 1, 2 and 3. The High Court has observed
    in its order that the defendants have not disputed the findings
    of the trial court on issue Nos. 1, 2 and 3, as such, the same
 E have attained finality. The only findings on issues No. 4 to 5
    were challenged before the High Court which relate to provision
     contained in sub-section (4) of Section 20 of U.P. Act No. 13
     of 1972.

 F        8. Clause (a) of sub-section (2) of Section 20 of U. P. Act
   No. 13 of 1972 allows a landlord to seek eviction of tenant
   from a building after determination of his tenancy, on the ground
   that the tenant is in arrears of rent for not less than four months,
   and has failed to pay the same to the landlord within one month
 G from the date of service of notice of demand upon him. But
   sub section (4) of Section 20 protects the tenant from decree
   of eviction if he deposits entire arrears of rent with nine percent
    interest and costs before date of first hearing in the suit.

           9. Sub-section (4) of Section 20 of the Act reads as
  H
          SAMAR PAL SINGH v CHITRANJAN SINGH                      803
                 [PRAFULLA C. PANT, J.]

under:-                                                           A
     "(4) In any suit for eviction on the ground mentioned in
     clause (a) of sub-section (2), if at the first hearing of the
     suit the tenant unconditionally pays or tenders to the
     landlord or deposits in Court the entire amount of rent 8
     and damages for use and occupation of the building due
     from him"(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 costs of the suit in respect thereof, after c
     deducting therefrom any amount already deposited by
     the tenant under sub-section (1) of Section 30, the Court
     may, in lieu of passing a decree for eviction on that
     ground, pass an order relieving the tenant against his
     liability for eviction on that ground:                        D
      Provided that nothing in this sub-section, shall apply in
      relation to a tenant who or any member of whose family
      has built or has otherwise acquired in a vacant state, or
    · has got vacated after acquisition, any residential building E
      in the same city, municipality, notified are.a or town area.
     Explanation:- For the purpose of this sub-section-
     (a) the expression "first hearing" means the first date for
     any step or proceeding mentioned in the summons
     served on the defendant;                                    F
     (b) the expression "cost of the suit" includes one-half of
     the amount of counsel's fee taxable for a contested suit."
      10. From the record, it appears that initially suit was G
decreed ex-parte against ·the defendants, and they got the
same set aside vide order dated 25.05.1984. On the next day
i.e. 26.05.1984, on behalf of the defendants, a tender was
submitted for depositing Rs. 20,000/- in favour of the landlord
towards arrears of rent, 9% interest and costs of the suit. It is H
804        SUPREME COURT REPORTS                 [2015] 12 S.C.R.


A also apparent from the record that after the tender was passed
  by the Court, the amount was deposited on 28.05.1984. It is
  not disputed by the learned counsel for the appellant that the
  amount deposited was sufficient to cover what was required
  to be deposited under the sub-section quoted above. As to
B the date offirst hearing, also no argument is advanced before
  us as such there is no scope of interference with the conclusion
  of the High Court on that point.

         11. What is vehemently argued before us on behalf of
C the landlord is that in view of the proviso to sub-section (4) of
  Section 20, since the defendants have acquired as many as
  four houses within municipal limits of the city, as such, they are
  not entitled to protection provided under the sub-section. On
  the other hand, on behalf of the tenants, it is contended that
D the proviso to s~b-section (4) deprives a tenant only if he has
  built or otherwise acquired a residential house in a vacant state
  in the city and in this connection it is further submitted that
  properties acquired by the tenants are commercial.

 E        12. From the language of sub-section quoted above, it
   is clear that under the proviso it is provided that nothing in the
   sub-section could apply in relation to a tenant who or any
   member of whose family has built or has otherwise acquired
   in a vacant state, or has got vacated after acquisition, any
 F residential building in the same city. Learned counsel for the
   tenanUrespondent did not dispute that the respondent has
   acquired property Nos. 621, 42, 43 and 72 in the municipal
   limits of Mowana (District Meerut). What the High Court has
   held is that the proviso deprives the tenant of the protection
 G under sub-section (4) only if he has acquired residential
   building. On carefully going through the record, we are unable
   to agree with the High Court that none of the properties acquired
   by the tenant are residential.. From the evidence on record, it
    is clear that only property no. 621 and property no. 42 are
 H
         SAMAR PAL SINGH v CHITRANJAN SINGH                         805
                [PRAFULLA C. PANT, J.]

shops. The record reveals that property no. 43 consists of two A
rooms, one hall on the ground floor, and one room with Sehan
on the first floor and property no.72 consists of five rooms.
There is no specific finding that the nature of these two buildings
is exclusively commercial. In our opinion, High Court has erred
in law by treating these two properties as commercial without B
there being evidence to that effect. A building which can be
used for residential as well as commercial purposes cannot
be said to be excluded from the clutches of proviso to sub-
section (4), if built, or acquired in vacant state within limits of
the municipal area in which the house from which eviction is C
sought by the landlord. Needless to say in the present case
building in question was let out for residential-cum-commercial
purposes.

        13. It cannot be said that object of sub-section (4) of D
  Section 20 is to protect those tenants who have built, or
  acquired in vacant state a house which can be used for
  residential as well as commercial purposes. If word "residential"
  mentioned in the proviso is taken to mean what has been
  interpreted by the High Court, the object of the proviso would E
. get defeated. As such, in our opinion, the High Court has erred
  in law in reversing the judgment and decree passed by the
  Judge Small Cause Court.

       14. For the reasons as discussed above, we are unable F
 to uphold the impugned order passed by the High Court.
 Therefore, the appeal is allowed and impugned order passed
 by the High Court in revision is set aside. The decree passed
 by the Judge Small Causes Court/Xth Additional District
 Judge, Meerut in SCC Suit No. 5 of 1983 is restored. The G
 defendants are directed to vacate premises in question within
 a period of sixty days from today. No order as to costs.

 Devika Gujral                                    Appeal allowed.
                                                                    H