Prem Prakash, J. - (1.) This first appeal from Order arises from a suit filed by the landlord-respondent for ejectment and recovery of arrears of rent against the tenant-appellant, in consequence of an order disentitling the latter to the benefit of Section 39 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (to be hereinafter referred as the Act) in respect of an accommodation not falling within the United Provinces (Temporary) Control of Rent and Eviction Act, 1947, but to which the Act it is the common ground became applicable during the pendency of the suit.
(2.) Shortly stated, the facts, in so far they are relevant for the purposes of the present, are these : the suit was filed on 6th August, 1970, with the averment that the defendant was the tenant on a monthly rent of Rs. 40/-, when tenancy had been determined by a notice to quit. While the suit was pending, the Act came into force with effect from 15th July, 1972. The tenant made an application on 25th July, 1972 for relief under Section 39 of the Act, tendering, at the same time, a sum of Rs. 2,509/- and odd split into various items, namely, the arrears of f rent from 1st July, 1968 to 9th February, 1970, damages for use and occupation from 10th February, 1970 to 25 July, 1972, costs of suit (excluding lawyers fee) and interest calculated at 9% per annum on the entire amount of arrears of rent and damages for use and occupation. The landlord resisted the application mainly on the grounds that lawyers fee in a sum of Rs. 100/- had not been deposited and the amount of interest was also short of the required amount. The trial court after hearing the parties found that the shop was constructed in the year 1952 bringing the accommodation within the ambit of the Act and about I the deposit made under Section 39 it took the view that the lawyers fee in the absence of a certificate filed by the plaintiff could not be taken to be the costs of the suit. Finding a deficiency of Rs. 10/- and odd in the deposit made, the court directed the defendant to make up the deficiency, it dismissed the suit for ejectment under Section 39 of the Act. The lower appellate court set aside the order for two reasons; First, that the trial court was not correct in directing the defendant to make up the deficiency after the expiry of the period prescribed under Section 39 from the date of the commencement of the Act, and secondly, the full costs of the suit should mean costs incurred by the landlord as the pleaders fee, not withstanding the fact that the lawyers certificate had not been filed by the time the application under Section 39 was made. In consequence, the application was rejected and the case was sent back to the trial court to dispose of it afresh in accordance with law.
(3.) Feeling aggrieved from that order, the tenant has come up in appeal before this Court and at the very threshold, in order to determine the correctness of the rival contentions between the parties, it would be necessary to have a look at Section 39 of the Act which is in the following words : "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 court before which the suit is pending, 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-sec. (1) or in clause (h) to (g) of Sub-sec. (2) of Section 20, and the parties shall be entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary.";