B.D.Agarwal, J. - (1.) THE question referred -for our decision by a learned Single Judge is: Whether the deposit made under Section 7 -C of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, could be adjusted under Section 39 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, inspite of the finding that the provisions of U.P. (Temporary) Control of Rent and Eviction Act, 1947, were not applicable to the accommodation and the deposits were illegal?
(2.) BRIEFLY stated the facts relevant are that on July 16, 1969 the Appellants instituted Original Suit No. 166 of 1969 in the Court of Munsif, Shikohabad, against the Respondent seeking his eviction from a shop described at the foot of the plaint, besides a sum of Rs. 517.33 as arrears of rent for the period of June 1, 1968 to June 28, 1969, at the rate of Rs. 40/ - per month and a sum of Rs. 42.67 as damages for use and occupation for the period of June 29, 1969 to July 14, 1969, calculated at the rata of Rs. 80/ - per month and damages pendente lite and future. The allegations are that the Defendant had been tenant of the shop on rent at rate of Rs. 40/ - per month, which was in arrears since June 1, 1968. The tenancy was determined by notice under Section 106 Transfer of Property Act given on May 26, 1969. The building having been constructed in 1961 -62, this did not fall within the purview of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter referred to as the 'Act, 1947). In defence it was pleaded, inter alia, that the Defendant had made deposit of rent for the period of June 1, 1968 to December 31, 1968, amounting to Rs. 280/ - at the rate of Rs. 40/ - per month on January 9, 1969, in the Court of the Munsif, Shikohabad, under Section 7 -C of the Act, 1947. The trial court found that the building in question was constructed in the year 1961 and hence the Act, 1947, was inapplicable. The notice under Section 106 Transfer of Property Act bad been duly served. Section 7 -C of the Act, 1947, could not avail the Defendant because the Act, 1947 was inapplicable. The suit was decreed accordingly on May 15, 1972, for ejectment of the Defendant besides recovery of Rs. 517.33 as arrears of rent for June 1, 1968 to June 28, 1969, and manse profits pendente lite and future at the rate of Rs. 40/ -per month. It was also provided in the operative portion of the decree that the Plaintiffs could withdraw Rs. 280/ - deposited by the Defendant under Section 7 -C of the Act, 1947, and that this amount shall be adjusted towards the arrears.
(3.) AGGRIEVED the Defendant preferred appeal, which was decided by the Civil Judge on September 9, 1974. The sole contention raised by the Defendant -Appellant before the lower appellate court was that he was entitled to the benefit of Sections 39/40 of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972, (hereinafter referred to as the 'Act, 1972'). This was asserted on the footing that the Act, 1972, came into force on July 15, 1972, when the appeal was pending. A sum of Rs. 2, 294.25 was deposited by him on August 14, 1972, in the appellate court, which included Rs. 1760/ - being rent for 1 -1 -1969 to 31 -8 -1972; Rs. 234.25 towards the costs of the suit and a sum of Rs. 300/ - by way of interest on the said amount at the rate of nine per centum per annum. It was asserted as well that deposit of Rs. 280/ - made under Section 7 -C of the Act, 1947, on January 9, 1969, had as well to be taken into account. The lower appellate court expressed the view that this was not a valid deposit within Section 7 -C of the Act, 1947, but since the trial court had directed the Plaintiffs Respondents to withdraw that amount and to adjust the same towards the arrears of rent, it had to be held that the amount had been paid by the Defendant towards the rent due from him and was, therefore, to be adjusted towards the rent. The finding given was: Though the deposit having been made in the Court of Munsif Shikohabad cannot be held to be a deposit in the Court in which the suit (i.e. appeal) was pending, yet in the aforesaid circumstances, in my view, that amount can be taken into consideration for calculating the entire amount of rent and damages due from him at the relevant date, i.e., to say when the deposit was made in this Court as per provisions of Section 39 x x x x. The Defendant was on this basis accorded the benefit of Sections 39/40 of the Act, 1972. The decree for the eviction was set aside on this footing.;