R.M. Sahai, J. - (1.) IN this tenant's petition the short question that arises for consideration is if a tenant could be ejected from a building which had completed ten years from the date of its construction and becomes amenable to provisions of Act XIII of 1972 merely because the landlord does not desire to continue him as a tenant.
(2.) SUIT was filed after determining tenancy in June 1981 for eviction and recovery of Rs. 10/ - as arrears from 1st July to 4th July, 1981 that is for three days. The trial court held that as provisions of Act XIII of 1972 applied with effect from February 84, the Petitioner was not liable to ejectment except on one of the grounds mentioned in Sub -section (2) of Section 20 of the Act. The order was set aside in revision. It was held that Petitioner was entitled to benefit under Section 39 and 40 of the Act only. And as he had not complied with provisions, namely, had not deposited costs of the suit he was not entitled to any protection. Effect of applicability of Act XIII of 1972 to a building is that a tenant becomes immune from ejectment by efflux of time. The normal lave to that extent stands abrogated. The only ground on which a tenant could be evicted is mentioned in Sub -section (2) of Section 20 of the Act. What is urged however is that a tenant could save himself from eviction in a pending suit only if he could bring his case squarely in Section 39 of the Act. According to learned Counsel if Petitioner wanted benefit of this section to save him self from eviction he had to comply with it strictly. True but when there was no arrear of rent the question of depositing it with 9% interest did not arise. Even if three days arrears is taken into account it was a trifling amount the non deposit of which could not result in eviction.
(3.) STRESS is laid on deposit of cost of the suit. It is urged that as this admittedly was not deposited the Petitioner was not entitled to benefit Under Section 39 of the Act. Technically the learned Counsel may be right but will such construction sub serve the purpose of Section 39 and 40 which was enacted to save a tenant from eviction. The objective as discerned from Section 20 and Section 39 appears to be that a tenant shall not be liable to eviction unless he was in arrears of rent or committed any breach as mentioned in Sub -section (2) of Section 20. In cases where suit for eviction for arrears of rent was pending the tenant has been given the option to choose between eviction and payment of arrears with interest. The Legislature obviously did not approve a tenant's conduct of remaining in occupation but not paying the rent. It therefore saddled it with liability to save himself from eviction on payment of not only arrears but interest at 9% and costs of the suit. But where the suit had been filed for mere eviction and there was no arrear, provisions of Section 20 or 39 have to be applied liberally in favour of tenant. To evict a lessee or tenant in exercise of proprietary right is an out dated concept. A suit for eviction therefore even if filed prior to enforcement of Act XIII of 1972 merely because the landlord did not want to keep the tenant could not be decreed in respect of building to which the provisions of Act XIII become applicable. And if compliance of Section 39 was considered essential, although in such suit it is not, the tenant should have been afforded an opportunity to pay or it should have been made part of the decree but the eviction should not have been ordered.;