N.D. Ojha, J. - (1.) THIS is a Plaintiff's appeal arising out of a suit for ejectment, recovery of arrears, of rent and Bhoomi Bhawan Kar. The accommodation in respect of which the suit had been filed is a shop constructed in 1962. The U.P. (Temp.) Control, of Rent and Eviction Act 1947 was not applicable to the accommodation. In the second appeal an application had been made by the Respondent tenant on 4 -8 -1972 for permission to make the deposits contemplated by Sections 39 and 40 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 192 (hereinafter referred to as the Act). The necessary permission was granted on 8 -8 -1972 and the deposits were made in this Court on 10 -8 -1972. The Act aforesaid came into force on 15 -7 -1972. The deposits as made on 10 -8 -1972 are thus within one month from the said date. Nothing has been brought to, my notice on behalf of the Appellant so as to bring the case within the proviso to Sub -section (1) or Clauses (b) to (g) of Sub -section (2) of Section 20 of the aforesaid Act.
(2.) WHAT , however, has been urged on behalf of the Plaintiff Appellant is that Section 39 aforesaid requires the tenant, inter alia, to deposit the full costs of the suit which would include full costs of the second appeal in view of Section 40 of the Act. It was urged that even though the Respondent may be justified in not depositing costs of the courts below inasmuch as the lower appellate court had directed the parties to bear their own costs, it was nevertheless incumbent upon the Respondent to have deposited the full costs of the appeal. On a perusal of the tender it appears that Rs. 55/ - have been deposited as costs. This obviously represents the costs of the second appeal. The words 'full costs' of the suit Under Section 39 have to be given a reasonable interpretation. Suppose the new Act came into force when a suit was pending in the trial court and was at the stage of framing of issues. At that stage it is not possible for the Defendant tenant to know the amount of costs Which the Plaintiff may incur in producing witnesses oh the date of the final hearing. He may not be aware even about the number of witnesses that the Plaintiff may produce. In such a situation the Defendant cannot be required to do the impossible act of depositing even such costs which the Plaintiff may in our subsequently. The deposit has to be made within a month from the date of the commencement of the Act which would be by 15 -8 -1972. In my opinion, therefore, full costs of the suit Under Section 39, if given a reasonable interpretation mean full costs of the suit as may have been incurred by the Plaintiff on or before the date on which the deposit is made Under Section 39. On this interpretation the Respondent if he wanted to take the benefit of Section 40 read with Section 39 was bound to deposit in this Court the entire amount of costs which the Plaintiff had incurred by 10 -8 -1972, viz. the date on which the deposit was made. The valuation of the appeal has been shown as Rs. 600/ -. The taxable fee for counsel comes to Rs. 45/ - and the clerical charges would be Rs. 4.50. A sum of Rs. 5/ - would represent the court fees paid by the Appellant on Vakalatnama. These amounts seem to have been deposited by the Respondent representing the costs incurred by the Appellant. However, it will be noticed that the Appellant had also incurred by that time another set of costs, viz. a sum of Rs. 92/ - court fees paid on the memorandum of appeal and other sums of money paid by way of stamps on the judgments and decrees as also the process fee. All these amounts had been incurred by the Appellant before 10 -8 -1972 and represented the costs incurred by him. Even on the aforesaid liberal interpretation of Section 39 the Respondent, if he wanted to take the benefit of Section 40 read with Section 39, was thus bound to deposit all these amounts towards the costs of the second appeal. This not having been done the Respondent has failed to comply with the mandatory requirements of Sections 39 and 40 and a decree for eviction of the Respondent cannot be refused because of the bar created by these sections.
(3.) FACED with this difficulty the learned Counsel for the Respondent made two applications during the course of the hearing of this appeal one Under Section 151 of the Code of Civil Procedure for permission to deposit Rs. 98/ - which according to him represented the balance of the "full cost" and the other Under Section 5 of the Limitation Act with a prayer to condone the delay in making the said deposit of Rs. 93/ -. In place of passing separate orders on these applications propose to decide them by this very judgment.;