N.D. Ojha, J. - (1.) THIS second appeal arises out of a suit for arrears of rent, damages and ejectment. The Defendants are the Appellants. During the pendency of the second appeal the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) (hereinafter referred to as the Act) was enacted and by Section 43 of the Act the U.P (Temporary) Control of Rent and Eviction Act, 1947 was repealed. The Appellants made an application claiming the benefit of Section 39 read with Section 40 of the Act. They made an application on 10th of July 1973 for permission to deposit a sum of Rs. 5,000/ - which, according to them, was the amount liable to be deposited by them trader Sections 39/40 of the Act. An order was passed on the same day permitting the said amount to be deposited within two days. The deposit was made on 11th July 1973 in this Court. In this application it was also stated that the Appellants had already deposited the amount contemplated by Sections 39/40 of the Act in the trial court within a month from 15th July 1972 which is the date on which the Act came into force. It was further stated that since the case of the Plaintiffs -Respondents was that the construction of the accommodation in question was completed on 12th June 1963, it had become necessary to make a deposit in this Court also in as much on the assertion of the Plaintiff -Respondents and in view of Sub -section (2) of Section 2 of the Act it could be argued that the commencement of the Act for the purposes of this case was 12th of June 1973 and a deposit had to be made within a month of that date as contemplated by Section 39 thereof.
(2.) THE appeal came up for hearing before a learned Single Judge and in view of the various submissions made for the parties the following questions were referred for decision by a Division Bench: (i) Whether in case of an appeal or revision the deposit contemplated by Section 39 of the Act has to be made in the appellate or revisional court where the appeal or revision is pending or its deposit even in the trial court would amount to a substantial compliance of the said section? (ii) What would be the date of commencement of the Act for purposes of Section 39 of the Act namely, whether it would be 15th July 1972 or the date on which the provisions of the Act become applicable to the building in respect of which the suit for ejectment is pending? and (iii) What amount would represent the 'full cost of the suit' in respect of a pending suit and in respect of a pending appeal or revision? Learned Counsel have made their submissions on question No. 2 first and accordingly we propose to deal with the said question at the outset. It would be useful to quote Sections 39 and 40 at this place: Section 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 of commencement or from the date of his knowledge of the pendency of the suit whichever be later, deposits in the entire 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 cent per annum and the landlord's full cost 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 Clauses (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 necessary: Provided that a tenant the rent payable by whom does not exceed twenty -five rupees per month need not deposit any interest as aforesaid." Section 40 reads: Section 40. Pending appeals in suits for eviction to buildings brought under regulation for the first time. - Where an appeal or revision arising out of a suit for eviction of a tenant from any building to which the old Act did not apply is pending on the date of commencement of this Act, it shall be disposed of in accordance with the provisions of Section 39, which shall mutatis mutandis apply.
(3.) IT is not disputed that the Act came into foree on 15th July 1972. Sub -section (2) of Section 2 of the Act is to the effect that except as provided in Sub -section (2) of Section 24 or Sub -section (3) of Section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed. The explanation attached to the Sub -section is not relevant for our purpose. Question No. 2 referred to us arises in view of the conflicting arguments raised for the parties. The case of the Defendants -Appellants has been that the words 'commencement of this Act' in Section 39 referred to the date on which the provisions of the Act became applicable to the building concerned whereas the case of the Plaintiffs -Respondents has been that these words mean the date on which the Act came into force, namely, 15th July 1972.;