SHIV KUMARversusJAWAHAR LAL VERMA & ORS.

                           SHIV KUMAR
                                                                                  A
                                v.
                     JAWAHAR LAL VERMA & ORS.

                            SEPTEMBER 14, 1988

                  [A.P. SEN AND S. NATARAJAN, JJ.]                                B

          U.P. Urban Building (Regulation of Letting, Rent and Eviction)
    Act, 1972. Section 39-Deposit of arrears of rent-Deposit within one
    month from date of knowledge of suit-Necessity for.

          A suit for eviction on the ground of arrears of rent was filed by the   c
    Appellant-landlord on I Ith June, 1973, after the coming into the force
    of the U.P. Urban Building (Regulation of Lettin~, Rent and Eviction)
    Act, 1972. In the plaint it was contended that the Act would not apply to
    the demised premises which was a shop because the same had been
    constructed only in the year 1966 and as such the shop was exempted           D
    from the purview of the Act for a period of 10. years under section 2(31.
'   The respondents contested the suit, the main ground being that the shop
    was covered by the Act and as such they were entitled to claim the
    statutory benefit conferred by section 39 on tenants who were in arrears
    of the rent.
                                                                                  E
          During the pendency of the suit the respondents' made applica-
    tions in February and March, 1976 to direct the Appellant to disclose
    the date of construction of the shop. As no information was forthcoming
    the respondents after waiting for some, time deposited the arrears of
    rent together with the interest as required under section 39 of the Act in
    April, 1976. The Appellant thereafter furnished the information that          F
    though the shop had been constructed in 1965 it was assrssed to house
    tax for the first time in January, 1966 and therefore the date of con-
    struction for purpose of section 2(2) would be January I, 1966.

          The Trial Court accepted the aforesaid statement regarding date G
    of construction of the shop and took the view that the respondents had , ·
    failed to deposit the arrears of rent within one month from the date but
    had deposited the arrears only in the month of April,:1976 and as such
    the respondents were not entitled to claim the benefit.tinder section 39 ·

          The Revision Petition preferred by the respondents to the District      H
                                       1079
    1080         SUPREME COURT REPORTS                I1988] Supp. 2 S.C.R.

    Court under section 25 of the Provincial Small Causes Courts Act was
A
    dismissed following the ratio laid down by this Cour.t in Om Prakash v.
    Digvijendrapal, [1982] 3 SCR 491. The Addi. Dist!. Judge took the view
    that irrespective of the date of deposit of the arrears of rent, the respon-
    dents were entitled to claim the benefit under section 39 because the Act
    itself did not apply to the demised premises inasmuch as the suit for
B   eviction was not pending on the date the Act came into force namely
    15th July, 1972 and had been filed only on 11. 7.1973.

          The respondents preferred a writ petition under Art. 226 to the
    High Court. A Single Judge held that the observation in Om Prakash's
    case to the effect that in order to attract section 39, the suit most be
C pending on the date of the commencemPnt of the Act, viz., 15.7.1972
    has been held to be obiter dicta in the later case Vineet Kumar v.
  . Mangal Sain Wadhera, [19841 3 SCC 352, and therefore the respon-
    dents would not stand.dis-entitled to seek the benefit of section 39 of the
    Act. The High Court further held that since the appellant had failed to
    disclose in the plaint the date of construction the respondents cannot be
D found fault for not having deposited the arrears of rent, that the respon-
    dents can be attributed to have knowledge about the date of construc-
    tion of the shop only in the month of April 1976 and since the arrears of
    rent had been deposited in April, 1976, they are entitled to claim the
    benefit of section 39 of the Act. The High Court accordingly allowed the
    writ petition, and quashed the decree for ev.iction passed against the
E respondents.

           Allowing the appeal, this Court,

         HELD: I. The High Court was not correct in taking the view that.since
    the respondents came to know only in April 1976 about the date of              (
F   construction of the building, the deposit of the arrears of rent in the
    month of April J.976 should be considered a valid deposit and sufficient
    compliance with the mandatory requirement of section 39. I I086F -GI

          2. Section 39 envisages only two situations viz. deposit of the
    ;irrears of rent within one month from the date of the commencement of .
G   the Act or within one month from the date of knowledge of the pendency
    of the suit. The Section does not provide for a tenant depositing the
    arre.~rs of rent within one month from the date of his coming to know of
    the date of construction of the building. [1086E-F]

         3. In the instant case, even though the respondents had contested
H .the suit and taken a plea in the written statement that the lease of the
              SHIV KUMAR v. J.L. VERMA [NATARAJAN, J.]                1081

shop granted to them would be governed by the terms of the Act, they
                                                                              A
had failed to deposit the arrears of rent within one month from the date
of their coming to know of the pendency of the suiL On the other hand,
they had waited till February and March 1976 to call upon the appellant
to furnish the date of construction of the building and then of their own
accord had deposited the arrears of rent in April, 1976. No explanation
was offered by the respondents as to why they failed to deposit the           B
arrears of rent within one month from the date of their knowledge of the
pendency of the suit even though they claimed the benefit of Section 39
or as to why they had waited till February/March 1976 to call upon the
appellant to furnish information regarding the date of construction of
the shop. I !086C-E]

      ~-   It is not necessary in the instant case, to go into the question   c
whether the respondents would or would not be entitled to claim the
benefit of section 39 of the Act by reason of the eviction suit not being a
pending action on the date the Act came into force. However, it can be
said in agreement with the pronouncement in Vineet Kumar's case, that
the view taken in Om Prakash 's case was obiter dicta. [ l084H; l085A·B]      D

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2199
of 1988.

     From the Judgment and Order dated 12.8.1985 of the Allahabad
High Court in C.M.W.P. No. 7343 of 1982.                                      E

     Yogeshwar Prasad, Ms. Rachna Gupta, Ms. Asha Rani Madan
and S.R. Shrivastava for the Appellant.

      Prithvi Raj and Uma Dutta for the Respondents.
                                                                              F
      The Judgment of the Court was delivered by

      NATARAJAN, J. Leave granted.

      This appeal by special leave has been preferred by a landlord and
is directed against the judgment and order of the Allahabad High              G
Court in Civil Miscellaneous Writ Petition No. 7343 of 1982. The
appellant succeeded in obtaining a decree for eviction against the
respondents before the Trial Court and the Revisional Court but the
decree was quashed by the High Court in the writ petition filed by the
respondents herein and hence the present appeal by the landlord
appellant.                                                                    H
    1082         SUPREME COURT REPORTS               [!988) Supp. 2 S.C.R.

           The suit for eviction on the ground of arrears of rent was filed by
A
    the appellant on 11.6.1973 after the coming into force of the U.P.
    Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972
    (for short the Act). In the plaint it was averred that the Act would not
    apply to the lease of the demised premises viz. a shop because the shop
    had been constructed only in the year 1966, and as such, the shop was
B   exempted from the purview of the Act for a period of ten years as
    provided for in Section 2(2) of the Act. The respondents raised various
    defences to the action but we are now concerned only with the tenabi-
    lity of one of those defences vi.Z. that the shop was covered by the Act
    and as such the respondents were entitled to claim the benefit confer-
    red by Section 39 of the Act on tenants who were in arrears of rent.
c         During the pendency of the suit, in the month of February 1976,
    the respondents made an application to the Trial Court to direct the
    appellant to disclose the date of construction of the shop as the
    plaintiff failed to disclose the date and it only contained a general
    averment that the shop had been constructed in the year 1966. As no
D   information was forthcoming, the respondents filed another applica-
    tion on U.3.1976 for the self same purpose. After waiting for some
    time, the respondents deposited the arrears of rent together with in-
    terest etc. as provided for in Section 39 of the Act in April 1976 and
    after they had made the deposit, the appellant furnished information
    to the effect that though the shop had been constructed in 1965, it was
E   assessed to house tax for the first time on 1.1.1966 and therefore the
    date of construction for purposes of Section 2(2) would be the 1st of
    January 1966. The Trial Court accepted the statement of the appellant
    regarding the date of construction of the shop being 1.1.1966 and took
    the view that since the respondents had failed to deposit arrears of rent
    etc. within one month from that date but had deposited the arrears           (
F   only in the month of April 1976, the respondents were not entitled to
    claim the benefit under Section 39.

          The respondents preferred a revision to the District Court under
    Section 25 otthe Provincial Small Causes Courts Act. The 3rd Addi.
    District Judge, Meerut who heard the revision held that irrespective of
G   the date of deposit of the arrears of rent, the respondents were not
    entitled to claim benefits under Section 39 because the Act itself did
    not apply to the demised premises inasmuch as the suit for eviction was
    not pending on the date the Act came into force viz. 15.7.1972 and had
    been filed only on 11.7.1973. In taking such a view, the Revisional
    Court followed the ratio laid down by this Court in Om Prakash v.
H   Digvijendrapal, [1982] 3 SCR 491. Accordingly, the Revisional Court
    dismissed the revision petition.
              SHIV KUMAR v. J.L. VERMA [NATARAJAN, J.I                  1083

        The respondents thereafter preferred a writ petition to the High
  Court of Allahabad under Article 226 of the Constitution of'India. A          A
  learned single judge of the High Court held that that the observation in Om
  Prakash',<·Ca.se (supra) to the effect that in order to attract Section 39
  the suit must be pending on the date of the commencement of the Act
  viz. 15.7.1972 h\lS been held to be obiter dicta by this Court in a later
  case Vineet Kumar v. Mangat Sain Wadhera, [1984) 3 SCC 352 and                B
  therefore the respondents would not stand disentitled to seek the
  benefit of Section 39 of the Act merely on the ground the suit for
  eviction was not'pending on the date the Act came into force. Proceed-
  ing further the High Court hel.d that since the appellant had failed to
  disclose in the plaint the date of construction of the building and had
 further failed to give the particulars thereof in spite of being specifi·
· cally called upon to do so by the respondents by means of two applica·        c
  tions filed in the months of February and March 1976, the respondents
  cannot be found fault with for not having deposited the arrears of rent,
  interest etc. within a period of one month from 1.1.1976 and that the
  respondents can be attributed to have knowledge about the date of
  construction of the shop only in the month of April 1976 and since they       D
  had deposited the arrears of rent in April 1976 itself they must be held
  to have deposited the arrears of rent within time so as to enable them
  to claim benefits under Section 39 of the Act. The High Court has
  rendered its finding on this aspect of the matter in the following
 manner:
                                                                                E
                    "Commencement of the Act, therefore, depends on
             first assessment. A tenant could avail of benefit under Sec-
             tion 39 only if he is aware of the first assessment. In the
             plaint opposite party did not disclose any date except that
             building was completed in 1966.
                                                                                F
                   When petitioner moved an application in February
             for disclosing date the opposite party kept mum. Even if it
             is assumed that this application as claimed by opposite party
             is not on record the petitioner moved another application
             in March to which reply was filed in April and it was stated
             that first assessment of the building had been done on 1st         G
             January, 1966. Petitioner, therefore, could know about the
             date of completion in April, 1976 only. In absence of any
             disclosure in the plaint or by any other manner the
             petitioner cannot be deprived of benefit under Section 39,
             even though he deposited entire amount in April even
             before the date was disclosed by opposite party. On the            H
    1084       SUPREME COURT REPORTS              I 1988] Supp. 2 S.C.R.
               finding recorded by Trial Court Act no doubt became
A
               applicable on 1st January, 1976 but for purposes of Section
               39 the one month period could be calculated from the date
               the petitioner acquired knowledge or shall be deemed to
               have acquired knowledge about commencement of the
               Act. As petitioner came to know in April only it could not
B              be said that he did not comply with mandatory require-
               ments of Section 39."

  In accordance with such conclusion the High Court allowed the writ
  petition and quashed the decree for eviction passed against the respon-
  dents. The correctness of the view taken by the High Court is the
C subject matter of challenge in this appeal.

        Learned counsel for the appellant contended before us that even
  though the view. taken in Om Prakash's case (supra) that the Act
  would apply only to those suits which were pending on the date of the
  commencement of the Act was declared to be obiter dicta in Vineet
D Kumar's case (supra), another Bench of this Court has subsequently
  held in Nand Kishore Marwah v. Samundri Devi, [1987] IV SCC 382
  that the view taken in Om Prakash's case by a Bench of three judges
  was binding on them and that the correct view to be taken is that
  Section 39 of the Act would apply only to those suits which were
  pending on the date of the commencement of the Act i.e. July 15, 1972
E and likewise Section 40 would apply only to those Jlppeals which
  pertained to suits pending when the Act came into force and as such
  the Revisional Court had acted correctly in holding that the res-
  pondents cannot claim benefits under the Act and that the High Court
  had erred iII quashing the decree for eviction passed against the          /
  respondents.                                                               '
F
        Arguing to the contrary, the learned counsel for the respondents
    stated that the decision in Nand Kishore Marwah's case would not
    affect the respondents in any manner because of two factors viz. the
    view taken in Om Prakash's case (supra) regarding the Act being
    applicable only to suits pending on the date of commencement of the
G   Act being admittedly obiter dicta and secondly the Bench which
    decided Nand Kishore Marwah's case had wrongly construed the deci-
    sion in Vineet Kumar's case because of the mistaken assumption that
    the attention of the Court was not drawn to Om Prakash's case.

          Having regard to the facts of the case we do not think it neces-
H   sary for us to go into the question whether the respondents would or
                SHIV KUMAR v. J.L. VERMA [NATARAJAN, J.J                  1085
       would not be entitled to claim the benefit of Section 39 of the Act by A
       reason of the suit for eviction not being a pending action on the date
       the Act came into force. We may, however, say that we find ourselves
       in agreement with the pronouncement in Vineet Kumar's case that the
       view taken in Om Prakash's case was obiter dicta because as observed
       in the judgment, "it was not at all necessary in that case to deal with
     · the question whether the appellant would be entitled to the benefit of B
                                                                                      -
       Section ;w aS'the building had not become ten years old on the date
       wheµ the revision petition was heard." Be that as it may, even.accept-
       i.ng the respondent's case that the Act would govern the suit, we find
       that the respondents cannot claim benefit under Section 39 because of
       their belated· deposit of the arrears of rent and interest. It has to be
       noted that the suit for eviction was filed as early as on 11.6.73. By then
       the Act had come into force and the beneficial provision under Section c
       39 was fully known to the respondents. If they had wanted to avail of
       the benefits conferred by-Section 39 and deposit the arrears of rent
      ·together with interest, costs etc: the respondents should have
       deposited the amount within one month from the date of their
       knowledge of the filing of the suit. Section 39 reads as under:            D

.,                "39. Pending suits for eviction relating to buildings
                  brought under regulation for the first time: 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     E
                  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 en1ire 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   F
                  cent per annum and the landlord's full costs 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
                  clause (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        G
                  necessary. Provided that a tenant the rent payable b)
                  whom does not exceed twenty five rupees per month need
                  not deposit any interest as aforesaid."
                  (Emphasis supplied)

      From the terms of Section 39 it may be seen that if any tenant wants to    H
     1086        SUPREME COURT REPORTS              [!988] Supp, 2 S.C.R.       ••
                                                                                    I'
     avail of the benefit conferred by the Section he should deposit in the
A
     Court before which the suit is pending the entire amount of rent and
     damages for use or occupation together with interest at nine per cent
     per annum etc. within one month from such date of commencement (of
     the Act) or from the date of his knowledge of the pendency ofthe suir, ·
     whichever be later. Obviously, the first prescription would not apply
13   because the Act had come into force long before the suit was filed and
     as such there was no question of the respondents depositing the rent
     arrears "within one month from the date of the commencement of the
     Act.'' However, the second prescription would squarely applY' viz.
     the deposit being made "within one month from the date of knowledge
     of the pendency of the suit." Booking at the facts we find that even
     though the respondents had contested the suit and taken a plea in the
c    written statement that the lease of the shop granted to them would:be
     governed by the terms of the Act, they had failed to deposit the arrears
     of rent within one month from the date of their coming to know of the
     pendency of the suit. On the other hand, they had waited till February
     and March 1976 to call upon th~ appellant to furnish the date of con-
D    struction of the building and then of their own accord had deposited
     the arrears of rent in April 1976. No explanation was offered by the
     respondents as to why they failed to deposit the arrears of rent within
     one month from the date of their knowledge of the pendency of the
                                                                                "
     suit even though they claimed the benefit of Section 39 or as to why
     they had waited till February/March 1976 to call upon the appellant to
B    furnish information regarding the date of construction of the shop.
     The Section does not provide for a tenant depositing. the arrears of
     rent within one month from the date of his coming to know the da\e of
     construction of the building. The Section envisages only two situations
     viz. deposit of the arrears of rent within one month from the dat~, of
     the commencement of the Act or within one month from the elate of          (
F    knowledge of the pendency of the suit. The High Court was therefore
     not correct in taking the view that since the respondents came to know
     only in April 1976 about the date of construction of the building then
     deposit of the arrears of rent in the month of April 1976 should be
     considered as a valid deposit made under Section 39 and that the
     deposit complied with the mandatory requirements of Section 39.
d
        In this view of the matter we are of the opinion thafthe order of
  the High Court should be sef aside and the decree for eviction possed
  by the Trial Court and confirmed by the Revisional Co,µrt should be
  restored. Accordingly, the appeal will stand allowed and 'the order of            •
  the High Court is set aside and the decree of eviction passed in favour
                                                                                f
H of the appellant by the Lower Courts will stand restored. However, in
    I   •
                        SHIV KUMAR v. I.L. VERMA [NATARAIAN, I.]           1087

            order to enable the respondents to find alternate accommodation to A
            shift their shop, we direct that in execution of th~ decree, the respon-
            dents will not be dispossessed till 31-12-1988 subject to the condition
            the· respondents file an undertaking before this Court in the usual
            terms within a period of four weeks from today failing which the appel-
            lant will be at liberty to recover possession of the leased premises B
            even before 31.12.1988. In the facts and circumstances of the case,
            there will no order as to costs.

            N.V.K.                                             Appeal allowed.




i