B. L. Yadav, J. - (1.) THE tenant, present appellant (the defendant) has filed this Second appeal against the judgment and decree dated 28th August 1973 passed by 2nd Additional Civil Judge Aligarh, allowing the appeal and setting aside the decree and dismissing the suit of the plaintiff for recovery of rent and ejectment of the respondents from a shop detailed in the foot of the plaint.
(2.) THE facts of the case are almost admitted. THE shop in dispute was constructed in the year 1962 the defendant respondent was its tenant with rent of Rs. 12.50 per month. THE tenancy was to commence from 29th of every month and the rent was paid upto 28th July, 1969 but thereafter inspite of demands and reminders no rent was paid. THErefore the plaintiff did not want the defendant to continue as tenant and the notice terminating the tenancy was served on the defendant respondent. THE defendant did not vacate the premises even after the service of the notice nor paid the rent hence the suit was filed. THE suit was contested by the defendant respondent alleging that it was pre 1950 construction hence provisions of U. P. Act No. 3 of 1947 were attracted and the plaintiff refused to accept the rent. THE notice was alleged to be illegal. THE suit was decreed and an appeal was preferred but during the pendency of the appeal U. P. Act No. 13 of 1972 (U. P. Urban Buildings Regulation of Letting Rent and Eviction Act, 1972) came into force. In pursuance of Section 39 the defendant respondent deposited a sum of Rs. 456.50 p. as rent since 23rd October, 1969 till 31st August 1972 at the agreed rate of Rs. 12.50 p., together with the costs of appeal amounting to Rs. 16.50 p. and the other decretal amount of the trial court. It appears that entire decretal amount in execution case no. 72 of 1972 was also deposited. An amendment in the written statement was made in pursuance of Section 39 of U. P. Act No. 13 of 1972. THE defendant respondents' appeal was ultimately allowed by the lower appellate court and the suit was dismissed by the lower appellate court. Against this decree and judgment present appeal has been filed. Learned counsel for the appellant urged that as counsel's fee was not deposited by respondent which was included in the term ' landlords' full costs of the suit' hence full costs of the suit having not been deposited even though the arrears of rent etc. were deposited, the suit cannot be dismissed. The reliance was placed on R. D. Ramnath & Co. v. Girdhari Lal, 1975 AWC 139 and Ram Prasad v. Ganga Prasad, 1983 AWC 158. In this second appeal the point for determination is about the interpretation of Section 39 particularly the clause ' land lords' full costs of the suit '. Section 39 of the Act is a concession given by the Legislature to the tenant and it was to the effect that even during the pendency of the suit for ejectment, if arrears of rent and damages together with the land lord's full costs of the suit was deposited, no decree for eviction can be passed. In the present appeal however, the material point for determination is that even though other amount was deposited by the tenant but the counsel's fee was not deposited. The case of the respondent was that it could not be deposited inadvertently and not deliberately for two reasons. First as the counsel fee was not shown in the decree even though the counsel's fee in trial court, was shown in the decree of the trial court, and the same was deposited, and secondly that the appellant also did not point out the same otherwise when entire decretal amount, in the execution case no. 72 of 1983 was deposited, counsel's fee in the appeal could also have been deposited.
(3.) THE term 'costs' is not a defined term either in the Code of Civil Procedure or under the Act. In case a particular word has not been defined in the Statutes, the dictionary meaning of the same can be looked into. According to Shorter Oxfords English dictionary word ' costs ' connotes the expenses of any legal transaction specially those allowed by the law or by the Court against the losing party. According to Websters IIIrd New International Dictionary the word ' Costs ' means expenses incurred in litigation, those payable to counsel by his client specially when fixed by law, those given by laws, or the court to the prevailing against the losing party. In the instant case the relevant meaning of the word ' costs ' would be the expenses incurred in the litigation as allowed by the Court. It has to be noticed that the appeal was decided, the suit was dismissed and the amount paid by the plaintiff to his counsel was supposed to be in sufficient compliance of the term ' landlord's costs '. No objection appears to have been raised by the landlord about non-payment of the counsel's fee. THE memo of appeal contains copy of the decree but the counsel fee has not been shown there. THE appeal was also not allowed with costs, particularly when the entire costs shown in the execution application was deposited, there appears no sense why not the counsel's fee would have been deposited. It was imperative upon the landlord himself to see that the counsel's fee was included in the costs of the appeal. The provisions of Rule 528 Chapter XXIV (twenty four) of the General Rules (Civil) are mandatory and no fee paid to the counsel and amount paid to his clerk would be added in decree and payable by the otherwise unless the Munsarim was satisfied or the judge himself was satisfied that the fee was paid to such practitioner before the commencement of arguments or at the conclusion of evidence or the Presiding Officer himself certified the certificate of fee etc. In this case certificate of fee etc. was not shown to have been filed by the appellant in view of Rule 582 of Chapter twenty four of the General Rules (Civil). Even the Presiding Officer did not certify alleged payment of counsels fee made nor he treated any such payment within time. There was no evidence on the record to that effect. The costs of payment made to the counsel or clerk have not even been included in the decree of the lower appellate court, a certified copy of the same has been filed along with the memo of Second appeal. It is better to quote the relevant findings of Lower Appellate Court as follows : " I am inclined to hold that the U. P. Act No. 13 of 1972 is applicable to the disputed shop and the defendant has deposited the entire arrears of rent, costs of the suit and the appeal along with the interest as per tenders dated 20-3-72 and 1-8-72 vide papers 17-C-A and 19-C-A respectively. In view of this petition the defendant is entitled to get the benefit of Section 39 of U. P. Act No. 13 of 1972 and as such he is not liable for ejectment from the shop in dispute. " ;