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PETITIONER: SURESH CHAND

       Vs.

RESPONDENT: GULAM CHISTI

DATE OF JUDGMENT31/01/1990

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) MUKHARJI, SABYASACHI (CJ) SHETTY, K.J. (J)

CITATION:  1990 AIR  897            1990 SCR  (1) 186  1990 SCC  (1) 593        JT 1990 (1)   118  1990 SCALE  (1)100

ACT:     U.P.  Urban Buildings (Regulation of Letting,  Rent  and Eviction)  Act,  1972: Sections 2(2), 39  and  40--Prermises constructed  in 1967-Tenant--Whether entitled to  protection of statutory provision.

HEADNOTE:     On  the completion of construction of the demised  prem- ises  in 1967, the appellant-landlord had let it out to  the respondent-tenant in the same year. Later, on 27th May, 1972 the landlord filed the eviction suit against the tenant.  On 15th  July,  1972 the U.P. Urban  Buildings  (Regulation  of Letting,  Rent and Eviction) Act. 1972 came into force.  The tenant  deposited  in the Court on 2nd  September,  1977  an amount  of  Rs.4005 being the arrears of rent  inclusive  of interest  and cost. This payment was made within  one  month after  the expiry of the period of ten years  stipulated  in section  2(2) of the Act to take advantage of section 39  of the  Act. Section 2(2) inter alia provided that  nothing  in the Act shall apply to a building for a period of ten  years from the date on which its construction was completed, while section 39 dealt with pending suits for eviction relating to building brought under the regulation for the first time.     The  Trial  Court  gave the benefit of  section  39  and refused  to  order ejectment of the tenant.  The  landlord’s revision application was rejected by the Additional District Judge,  and his further revision was dismissed by  the  High Court. Allowing the appeal, this Court.,     HELD:  (1) In order to secure the benefit of Section  39 or 40 it must be shown that the suit, appeal or revision was pending on the date of commencement of the Act. Secondly, if the  suit  is rounded on the allegation  of  non-payment  of rent,  the  tenant must, within one month from the  date  of commencement of the Act or from the date of knowledge of the pendency of the suit, deposit in court the entire amount  of rent and damages for use and occupation of the building with interest  as  prescribed and landlord’s entire cost  of  the suit, to take the benefit of 187

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the said provision. If both these conditions are  satisfied, the  law, section 39, mandates that no decree  for  eviction shall  be passed except on any of the grounds  specified  in the  proviso  to sub-section (1) or clauses (b)  to  (g)  of sub-section (2) of section 20 of the Act. Similarly, section 40 lays down that if an appeal or revision (arising out of a suit for eviction of a tenant from any building to which the old Act does not apply) is pending on the date of  commence- ment of the Act, the benefit of section 39 will be available to the tenant. [199B-E]       The  legislature intended to give the benefit of  sec- tions  39  and 40 to suit, appeals or revisions  which  were pending on 15th July, 1972 and in which the deposit came  to be  made  within one month from that  date.  The  expression ’such’ preceding the word ’commencement’ is clearly  sugges- tive  of the fact that it has reference to the date of  com- mencement of the Act and the payment must be made within one month  from  such  commencement. unless  such  a  restricted meaning  to  the section is given, it would not be  able  to advance  the legislative intent to relieve the landlords  of new buildings from the rigours of the Act. [200F-H]     (3)  The Legislature desired to limit the scope  of  the application  of  sections 39 and 40 to  suits,  appeals  and revisions  pending on the date of commencement of  the  Act, i.e.,  15th July, 1972, relating to buildings to  which  the old Act did not apply and to which the new Act was to  apply forthwith  and not at a later date. This is clear  from  the fact  that  the section contemplates deposit of  arrears  to rent and damages together with interest and cost within  one month  from ’such date of commencement’ meaning the date  of commencement of the Act. [200B-C]     R.D.  Ram  Nath  & Co. & Anr. v. Girdhari  Lal  &  Anr., [1975] A.L.J. 1; Ram Swaroop Rai v. Lilavathi, [1980] 3  SCR 1034-(1980)  3 SCC 452; Om Prakash Gupta etc. v. Dig  Vijen- drapal Gupta etc., [1982] 3 SCR 491; Vineet Kumar v.  Mangal Sain Wadhera, [1984] 3 SCC 352; Pasupuleti Venkateswarlu  v. Motor  and General Traders, [1975] 1 SCC 779; A.K.  Gupta  & Sons  v. Damodar Valley Corporation, [1966] I SCR 796;  Nand Kishore  Marwah v. Samundri Devi, [1987] 4 SCC 382 and  Atma Ram Mittal v. Ishwar Singh Punia, [1988] 4 SCC 284, referred to.     (4)  The Courts below committed an error in  giving  the benefit of section 39 of the Act to the tenant since  admit- tedly  the  tenant could not and had not  made  the  deposit within one month from the date of commencement of the Act on 15th July, 1972 but had made the deposit 188              SUPREME COURT REPORTS   [1990] 1 S.C.R. within a month after the moratorium period expired in  1977. [201F]

JUDGMENT:     CIVIL  APPELLATE  JURISDICTION: Civil  Appeal  No. 10234 of 1983.     From the Judgment and Order dated 3.1.19/9 of the  Alla- habad High Court in Civil Revision No. 3714 of 1978. K.B. Rohtagi for the Appellant. R.K. Garg and D.K. Garg for the Respondent. The Judgment of the Court was delivered by     AHMADI,  J.  The  short question which  arises  for  our consideration  in this appeal by special leave is whether  a tenant of a premises constructed in 1967 is entitled to  the protection of Section 39 of the U.P. Urban Buildings  (Regu- lation of Letting, Rent and Eviction) Act, 1972 (Act No.  13

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of  1972  as  amended by Act No. 17  of  1985),  hereinafter called ’the Act’, in an eviction suit instituted before  the commencement of the Act. The Act came into force w.e.f. 15th July, 1972 by virtue of the notification issued by the State Government  in exercise of power conferred by Sub-Section  4 of   Section   1   of  the  Act,   vide   Notification   No. 3409/XXIX-59-72 dated 27th June, 1972 published in the  U.P. Government Gazette, Extra, dated 1st July, 1972. The Act was enacted for inter alia regulation of letting and eviction of tenants  from certain classes of buildings situate in  urban areas  specified in Sub-Section (3) of Section 1. Section  2 indicates the buildings to which the Act shall not apply. We are  concerned with Sub-Section (2) of Section 2, the  rele- vant part whereof reads as under: "Except  as provided in sub-section (5) of section 12,  sub- section (1-A) of Section 21, sub-section (2) of Section  24, Sections 24-A, 24-B, 24-C or sub-section (3) of section  29, nothing in this Act shall apply to building during a  period of  ten  years from the date on which  its  construction  is completed". Since it is not disputed before us that the construction  of the suit property was completed in 1967, we need not set out the provisos and the explanations to the sub-section. Section  3 defines the various expressions used in the  Act. Under 189 clause  (a)  ’tenant’,  in relation to a  building  means  a person by whom its rent is payable and ’building’  according to clause (i) means a residential or non-residential  roofed structure including any land, garages and out-houses  appur- tenant thereto. Any person to whom rent is or if the  build- ing  were  let, would be, payable, including  his  agent  or attorney or such person, is a ’landlord’ within the  meaning of  clause (j) of that section. It would thus seem that  but for the exemption granted by Section 2(2), the provisions of the Act would have applied to the letting of the suit  prem- ises. The scheme of Section 2 is that buildings referred  to in  clauses (a) to (f) are exempt from the operation of  the Act for all times (subject of course to legislative changes) whereas  the  exemption  granted by Section 2(2)  is  for  a period of ten years from the date of completion of construc- tion.     Chapter  III regulates to letting. Section  11  provides that no person shall let any building except in pursuance of an  allotment order issued by the District Magistrate  under Section 16. Chapter IV regulates eviction. Section 20  inter alia  prohibits the institution of a suit for eviction of  a tenant from any building except on the grounds catalogued in clauses  (a) to (g) of sub-section (2) thereof.  Section  21 provides  for  the eviction of a tenant if the  building  is bonafide required by the landlord for his own use or the use of any of his family member. The scheme of Chapters III & IV clearly shows that both the letting of and eviction from the buildings  to  which the Act applies are  regulated  by  the provisions of the Act.     Section 39 of the Act with which we are mainly concerned finds  its place in Chapter VII entitled  Miscellaneous  and Transitional Provisions. That section reads as under: "Pending  suits  for eviction relating to  building  brought under  regulation for the first time--In any suit for  evic- tion 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  com- mencement or from the date of his knowledge of the  pendency of  the  suit,  whichever be later, deposits  in  the  court

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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)  to- gether  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 190 grounds  mentioned in the proviso to sub-section (1)  or  in clauses  (b)  to (g) of sub-section (2) of Section  20,  and parties  shall  be entitled to make necessary  amendment  in their  pleadings  and to adduce  additional  evidence  where necessary." This Section carried an explanation which came to be omitted by Section 8(iv) (and be deemed always to have been omitted) of the Civil Laws Amendment Act, 1972. Section 40 lays  down that  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  provi- sions of Section 39, which shall mutatis mutandis apply.     The plain reading of Section 39 makes it clear that  the said  section obliges the court to refuse to pass  a  decree for eviction, 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, if the following  four  require- ments are satisfied:    (i)  the building is one to which the old Act  (the  U.P. (Temporary) Control of Rent and Eviction Act, 1947--U.P. Act No. III of 1947) did not apply;    (ii)  the  eviction suit must be pending on the  date  of commencement of the Act i.e., 15th July, 1972:    (iii)  the tenant deposits in court the entire amount  of rent/damages  for  the use and occupation  of  the  building together  with interest at 9% per annum and  the  landlord’s full cost of the suit; and    (iv) such deposit is made within one month from the  date of commencement of the Act or from the date of knowledge  of the pendency of the eviction suit, whichever is later. The benefit of Section 39 is extended mutatis mutandis to an appeal or revision arising out of an eviction suit to  which the old Act did not apply provided the said appeal or  revi- sion was pending on the date of commencement of the Act.     On  a plain reading of Section 39 it becomes clear  that in a suit for eviction to which the said provision  applies, the Court trying the suit is 191 precluded  from passing a decree for eviction if the  tenant deposits  in  court the entire amount of  rent  and  damages together  with interest at 9% per annum and  the  landlord’s full  cost  of  the suit within the time  allowed  but  this embargo  does not apply if eviction is sought on the  ground or grounds mentioned in the proviso to Sub-section (1) or in clauses  (b)  to (g) of Sub-section (2) of Section  20.  The ground  mentioned in the proviso to sub-section (1) of  Sec- tion 20 is determination of tenancy by efflux of time  where the  duration  of  tenancy is fixed under  a  compromise  or adjustment  arrived  at with reference to  a  suit,  appeal, revision or execution proceeding which is recorded in  Court or is otherwise reduced to writing and signed by the tenant. Sub-section  (2)  of Section 20 enumerates  the  grounds  in clauses (a) to (g) on which an eviction suit can be  rounded against  a tenant. Clause (a) permits the institution  of  a suit  for eviction if the tenant is in arrears of  rent  for not  less  than four months and has failed to pay  the  same within  one  month from the date of service of a  notice  of

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demand upon him. The grounds in clauses (b) to (g) are other than  arrears of rent. From the fact that a suit rounded  on anyone  or  more of the grounds set out in  the  proviso  to sub-section (1) and clauses (b) to (g) of sub-section (2) of Section  20 is exempt from the operation of Section  39,  it would seem that the legislature desired to grant  protection from eviction where the same is sought on the sole ground of arrears  of rent. That is why in the exemption  clause  con- tained  in  Section  39, clause (a) to  sub-section  (2)  of Section  20 which permits eviction on the ground of  arrears of  rent is deliberately and intentionally excluded  and  an embargo is created against the passing of an eviction decree if the tenant deposits in court within the time allowed  the entire arrears of rent together with interest and costs.  If the  suit is on anyone or more of the exempted grounds,  the landlord is permitted to proceed with the same, if necessary by  effecting an amendment in the pleading and  by  adducing additional evidence. Such a suit may be continued and if the ground or grounds pleaded is/are proved, the court is  enti- tled  to  grant eviction. It, therefore, seems clear  to  us that  the  legislature  intended to protect  eviction  of  a tenant  on the ground of arrears of rent if the tenant  com- plied with the conditions of Section 39.     In  the present proceedings it is not disputed that  the construction  of the demised premises was completed in  1967 and the letting had taken place in the same year. It is also not disputed that immediately on the completion of ten years the  tenant  deposited on 2nd September, 1977 an  amount  of Rs.4,005 being the arrears of rent inclusive of interest and cost.  It is not disputed that this payment was made  within one month after the expiry of the period of ten years stipu- lated in 192 Section  2(2) of the Act to take advantage of Section 39  of the Act. The eviction suit was admittedly filed on 27th May, 1972 i.e. before the commencement of the Act i.e. 15th July, 1972.  There is also no dispute that the provisions  of  the old Act did not apply to the suit. On these undisputed facts the  trial court gave the benefit of Section 39 and  refused to  order  ejectment  of the tenant. The  landlord  filed  a revision application which was rejected by the Second  Addi- tional District Judge, Bulandshahr, on 15th July, 1978.  The High Court rejected the landlord’s further revision applica- tion  on the ground that the question was concluded  by  the decision  in  R.D. Ram Nath & Co. & Anr. v. Girdhari  Lal  & Anr., [1975] A.L.J. 1. It is against the said decision  that the present appeal is preferred. The question then is wheth- er or not the provision of Section 39 of the Act is attract- ed in the backdrop of the above facts.     We  may now consider the case law on the point to  which our  attention was called. In Ram Swaroop Rai v.  Lilavathi, [1980]  3 SCR 1034-[1980] 3 SCC 452, this Court  while  con- struing section 2(2) of the Act observed that the burden  is on  the  landlord  to show that his case  falls  within  the exemption engrafted in the said sub-Section. In the  present case,  since  the facts are not in dispute the  question  of onus recedes in the background. In Om Prakash Gupta etc.  v. Dig  Vijen:  drapal Gupta etc., [1982] 3 SCR 491,  a  three- Judge Bench had to consider the effect of section 2(2)  read with  section 39 of the Act. In that case, an eviction  suit was  filed against the appellant-tenant on the  ground  that the provisions of the Act did not apply to the demised  shop and the tenant was therefore liable to be evicted. The Trial Court decreed the suit on the finding that the  construction of  the suit shop was completed in 1967 and since  10  years

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had not elapsed from the date of completion of the construc- tion  the  provisions  of the Act had  no  application.  The tenant  carried the matter in revision but the judgment  and decree of the Trial Court was substantially maintained.  The tenant  thereupon  moved the High Court under  section  115, C.P.C.  The  learned  Single Judge who  heard  the  revision remitted  the  matter  to the Trial Court  for  recording  a finding as to on what date the construction of the  building could  be said to have been completed within the meaning  of section  2(2) read with Explanation I(a) thereto. The  Trial Court returned a finding to the effect that the construction of the disputed shop must be taken to have been completed on the  date  of the first assessment, i.e.  1st  April,  1968, within  the meaning of the said provision. The tenant  chal- lenged the finding on the ground that the date of occupation should  have been taken to be the date of completion of  the construction  and not the date of the first assessment.  The Division 193 Bench  to  which the case was referred  concluded  that  the construction  of the shop must be deemed to have  been  com- pleted  on  1st April, 1968 i.e. at the date  of  the  first assessment  and  not at the date of  actual  occupation  and hence  the provisions of the Act had no application  to  the building  till  the  date of the decision  of  the  revision application  on 23rd March, 1978 as the period of  10  years expired  later  on 31st March, 1978. This Court  upheld  the finding that the date of construction must be taken, as  the date  of first assessment i.e. 1st April, 1968 and  not  the date  of actual occupation. To overcome this  difficulty  it was  contended  on behalf of the tenant that  on  a  correct reading  of  section 2(2) the  exemption  engrafted  therein would  not  embrace buildings constructed prior to  the  en- forcement of the Act. This Court construing the language  of section  2(2) of the Act held that the  sub-section  nowhere provided  that  the building should  have  been  constructed after the commencement of the Act; to so interpret it  would tantamount to adding words in it which was not  permissible. This  Court,  therefore, negatived the contention  that  the exemption  under the sub-section did not  embrace  buildings constructed  before the Act came into force. As pointed  out earlier the revision application was decided on 23rd  March, 1978 whereas the period of 10 years from the date of comple- tion of the construction i.e. 1st April, 1968 was to end  on 31st  March, 1978 i.e. a week later. Section 39 of the  Act, therefore, clearly did not apply in the facts of that  case. Secondly, it was found that the suit was instituted on  23rd March,  1974 long after the commencement of the Act and  was therefore  not  pending on 15th July, 1972  to  attract  the application  of  Section 39 of the Act. For  these  reasons, this  Court  came to the conclusion that  the  appellant  Om Prakash was not entitled to tile protection of section 39 of tile Act. Two features which distinguish this case from  the case  on  hand are: (i) that the  revision  application  was disposed  of  by  the High Court before the  expiry  of  the moratorium period of 10 years granted by section 2(2) of the Act;  and  (ii) the suit having been filed  long  after  the commencement of the Act on 15th July, 1972 could not be said to be pending at the date of the commencement of the Act  to enable  the tenant to seek redress under section 39  of  the Act. In Vineet Kumar v. Mangal Sain Wadhera, [1984] 3 SCC 352, an ,  eviction suit was filed on the ground of arrears of  rent and  damages for use and occupation of the demised  premises pendente  lite.  The  tenant was inducted  in  the  building

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stated  to  have been constructed in 1971 on  7th  February, 1972, on a monthly rent of Rs.250. The building in suit  was assessed  to house and water tax on 1st October, 197 1.  The tenant defaulted in the payment of rent ’despite service  of notice dated 24th 194 March,  1977. Admittedly, the suit was filed after the  com- mencement of the Act. The point for consideration was wheth- er  the building which was not 10 years’ old on the date  of the  suit and was therefore exempted from the  operation  of the Act, would be governed by it on the expiry of the period of 10 years pendente lite. Dealing with this contention this Court observed in paragraph 13 of the judgment as under: "The moment a building becomes ten years old to be  reckoned from  the date of completion, the new Rent Act would  become applicable."     The  decision  in Om Prakash Gupta’s  case  (supra)  was rightly  distinguished on the ground that it was not  neces- sary  in  that case to deal with the  question  whether  the tenant would be entitled to the benefit of Section 39 as the building had not become ten years old when the revision  was disposed of by the High Court on 23rd March, 1978.     Dealing  next with the contention that the Court had  to decide the case on the basis of the cause of action that had accrued before the institution of the suit and not on a  new cause of action, this Court, relying on the observations  to the  effect that subsequent developments can be looked  into made in paragraph 14 of the decision in Pasupuleti Venkates- warlu  v.Motor  and General Traders, [1975] 1 SCC  770,  ob- served as under: "Normally  amendment is not allowed if it changes the  cause of  action. But it is well recognised that where the  amend- ment  does  not  constitute an addition of a  new  cause  of action,  or  raise a new case, but amounts to no  more  than adding  to  the facts already on the record,  the  amendment would be allowed even after the statutory period of  limita- tion. The question in the present case is whether by seeking the  benefit of Section 39 of the new Act there is a  change in the cause of action." After referring to the case of A.K. Gupta & Sons v.  Damodar Valley  Corporation,  [1966] 1 SCR 796, this  Court  further observed: "The appellant in the present case only seeks the protection of the new Rent Act which became applicable to the  premises in question during the pendency of the litigation. We see no reason why the benefit of the new Rent Act be 195 not  given to the appellant. Section 20 of the new Rent  Act ’provides a bar to a suit for eviction of a tenant except on the specified grounds as provided in the section. Subsection (4)  of Section 20 stipulates that in any suit for  eviction on the grounds mentioned in clauses (a) to sub-section  (2), viz.  the  arrears of rent, if at the first hearing  of  the suit  the tenant in default pays all arrears of rent to  the landlord or deposits in court the entire amount of rent  and damages for use and occupation of the building due from him, 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 cost  of  the suit in respect thereof after deducting therefrom any amount already  deposited  by the tenant under sub-section  (1)  of Section  30, the court may, in lieu of passing a decree  for eviction on that ground, pass an order relieving the  tenant against his liability for eviction on that ground.  Sections 39 and 40 of the new Rent Act also indicate that the benefit

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of the new Act will be given to the tenant if the conditions contemplated  in  those sections are satisfied.  Section  39 also indicates that the parties are entitled to make  neces- sary  amendment in their pleadings and to adduce  additional evidence where necessary."     On this line of reason this Court set aside the judgment and decree of the High Court insofar as it related to  evic- tion.     We find, with respect, that Their Lordships committed an error in overlooking the text of Section 39 of the Act. That section  in terms says that the suit must be pending at  the commencement  of the Act to seek the benefit of that  provi- sion.  Admittedly, the suit in question was filed after  the commencement  of the Act and hence the tenant was not  enti- tled  to  the  benefit of Section 39 of the  Act.  But  that apart,  in a subsequent decision of this Court in  Nand  Ki- shore Marwah v. Samundri Devi, [1987] 4 SCC 382, this  Court dissented from the view in Vineet Kumar’s case on the ground that the attention of the Court was not drawn to Om  Prakash Gupta’s  case  (supra)  which  specifically  considered  the provisions  of  the Act and in particular  the  language  of Section 39 of the Act to point out that in order to  attract that provision it must be shown that the suit was pending at the commencement of the Act i.e. on 15th July, 1975.  Refer- ring  to Section 20 of the Act, which bars institution of  a suit for eviction of a tenant except on grounds specified in clauses (a) to (g) this Court observed as under: 196 "This  clearly  indicates  that the  restriction  put  under Section  20  is to the institution of the  suit  itself  and therefore  it  is clear that if the provisions of  this  Act applied  then no suit for-eviction can be instituted  except on  the ground ’specified in the sub-sections of  this  sec- tion.  Keeping  in view the language of this section  if  we examine  the  provisions  contained in  sub-section  (2)  of Section  (2) it will be clear that for a  newly  constructed building  the provisions of this Act will not apply  for  10 years and therefore so far as the restriction under  Section 20  is  concerned they will not apply and  therefore  it  is clear  that within 10 years as provided for  in  sub-section (2)  of Section 2 restriction on the institution of suit  as provided for in Section 20 subsection (1) quoted above  will not  be  applicable  and it is thus clear  that  during  the pendency  of  the litigation even if 10  years  expired  the restriction  will  not  be attracted as the  suit  has  been instituted  within  10 years and  therefore  restriction  as provided for in Section 20 cannot be attracted." It  may with respect, be pointed out that the  comment  that the  Court’s attention was drawn to Om Prakash Gupta’s  case is  not  correct as this case is specifically  mentioned  in paragraph 14 of the judgment in that case.     Lastly, in Atma Ram Mittal v. Ishwar Singh Punia, [1988] 4 SCC 284, the appellant-landlord had filed an eviction suit in respect of a shop which had been rented to the respondent in  1978. The suit was filed on the ground that  the  tenant was in arrears of rent from ist December, 1981 to 31st  May, 1982  and the tenancy had been duly terminated by a  notice. The suit was filed under sub-section (3) of Section 1 of the Haryana Urban (Control of Rent and Eviction) Act, 1973. That sub-section provided that "nothing in the Act shall apply to any  building the construction of which is completed  on  or after the commencement of this Act for a period of ten years from  the date of its completion". Section 13(1)  enumerated the usual grounds on which possession of a building or  land could  be  obtained  from a tenant. In  November  1984,  the

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tenant applied for dismissal of the suit on the ground  that the moratorium period of 10 years expired in June/984  since admittedly the demised shop was constructed sometime in June 1974. Quoting the following passage from Ram Swaroop  Rai’s, case (supra): 197 "The legislature found that rent control law had a  chilling effect  on new building construction, and so,  to  encourage more  building operations, amended the statute  to  release, from the shackles of legislative restriction, ’new construc- tions’ for a period of ten years. So much so, a landlord who had let out his new building could recover possession  with- out  impediment if he instituted such proceeding within  ten years of completion." this Court held as under: "It is well settled that no man should suffer because of the fault  of  the court or delay in the  procedure.  Broom  has stated the maxim "actus curiae neminem gravabit"--an act  of court  shall prejudice no man. Therefore, having  regard  to the time normally consumed for adjudication, the ten  years’ exemption  or holiday from the application of the  Rent  Act would  become illusory, if the suit has to be  filed  within that time and be disposed of finally. It is common knowledge that  unless  a suit is instituted soon after  the  date  of letting  it would never be disposed of within ten years  and even  then within that time it may not be disposed of.  That will  make the ten years holiday from the Rent Act  illusory and  provide  no  incentive to the landlords  to  build  new houses to solve problem of shortages of houses. The  purpose of legislation would thus be defeated. Purposive interpreta- tion  in a social amelioration legislation is an  imperative irrespective of anything else." Proceeding further, this Court said: "We  are  clearly of the opinion that having regard  to  the language we must find the reason and the spirit of the  law. If  the immunity from the operation of the Rent Act is  made and  depended upon the ultimate disposal of the case  within the period of exemption of ten years which is in reality  an impossibility,  then  there would be empty reasons.  In  our opinion,  bearing in mind the well settled  principles  that the  rights  of the parties crystallise to the date  of  the institution  of the suit as enunciated by this Court  in  Om Prakash  Gupta v. Digviiendrapal Gupta, the meaningful  con- struc- 198 tion must be that the exemption would apply for a period  of ten  years and will continue to be available until  suit  is disposed of or adjudicated. Such suit or proceeding must  be instituted  within the stipulated period of ten years.  Once rights  crystallise the adjudication must be  in  accordance with law."     In  order to appreciate the controversy in  the  correct perspective  it  would  not be out of place  to  notice  the legislative  changes.  During the second world  war  certain orders  were issued under the Defence of India Rules,  1939, relating  to  the control and letting of  accommodations  to cope with the paucity of accommodation. This was followed by an  ordinance promulgated in 1946 which was repealed by  the U.P.  (Temporary)  Control of Rent and  Eviction  Act,  1947 described  as  the Old Act by Section 3(h) of the  Act.  The measure  which was intended to be of a  temporary  character only continued till the passing of the Act in 1972. When the old  Act  replaced the 1946 ordinance, the  expectation  was that  the acute shortage of accommodation was only a  tempo- rary  feature and would disappear with the passage of  time.

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The hope was belied and the stringent restrictions placed on the landlord’s rights in the matter of fixation and recovery of  rent  and eviction from the rented premises  had  to  be continued   indefinitely.  These  restrictions   discouraged building activity which added to the already serious housing problem. There was an urgent need to provide incentives  and thereby  encourage  new  constructions. With  that  in  view Section 2(2) provided that nothing in the Act shall apply to a  building  during a period of ten years from the  date  on which  its  construction is completed. In  other  words  the legislature  has relieved the owner of a new  building  from the restrictive provisions relating to rent, etc., contained in  Sections  4  to 9 of the Act. So also  such  owners  are granted  a holiday or recess of ten years from the  restric- tive  provisions regulating letting (Chapter III) and  Evic- tion  (Chapter IV) contained in the Act. This  freedom  from the  operation  of the Act for ten years is  given  for  the obvious purpose of encouraging building activity to ease the problem of scarcity of accommodation. The provisions of  the Act  in this behalf must, therefore, be understood  in  this background.     Section  2(2) in terms says that the provisions  of  the Act will not apply to new constructions for a period of  ten years from the date of completion of the construction.  Read positively  it means that the Act will apply to such  build- ings  on the expiry of the recess period. But how are  suits already  filed  during the recess period to be  dealt  with? Does 199 the  Act offer any clue in this behalf? In  this  connection the  only provisions which come to mind are sections 39  and 40  of the Act. Section 39 deals with suits pending  on  the date of commencement of the Act. Section 40 extends  protec- tion  to an appeal or revision pending on the date  of  com- mencement of the Act provided it has arisen out of an  evic- tion  suit filed against a tenant to which the old  Act  did not apply. Such an appeal or revision has to be disposed  of in the same manner as the suit is required to be dealt  with under Section 39 of the Act. In order to secure the  benefit of  Section 39 or 40 it must be shown that the suit,  appeal or  revision was pending on the date of commencement of  the Act.  Secondly, if the suit is rounded on the allegation  of nonpayment  of rent, the tenant must, within one month  from the  date  of commencement of the Act or from  the  date  of knowledge of the pendency of the suit, deposit in court  the entire amount of rent and damages for use and occupation  of the  building  with interest as  prescribed  and  landlord’s entire  cost  of the suit, to take the benefit of  the  said provision. If both these conditions are satisfied, the  law, Section  39. mandates that no decree for eviction  shall  be passed except on any of the grounds specified in the proviso to sub-section (1) or clauses (b) to (g) of sub-section  (2) of  Section  20 of the Act. Similarly Section 40  lays  down that  if  an appeal or revision (arising out of a  suit  for eviction of a tenant from any building to which the old  Act does  not apply) is pending on the date of  commencement  of the Act, the benefit of Section 39 will be available to  the tenant. What these two provisions emphasise is that in order to  avail of the benefit engrafted therein, the  proceedings i.e.,  the  suit,  appeal or revision  application  must  be pending at the date of commencement of. the Act, i.e.,  15th July,  1972, and the tenant must have deposited the  arrears of rent and damages together with interest and full cost  of the landlord in the court within one month from the date  of such  commencement. Once the four conditions of  Section  39

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set out in the earlier part of this judgment are  satisfied, the  court  is debarred from passing a decree  in  ejectment 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 of the Act. Therefore, even in a suit,  appeal or revision application pending at the date of  commencement of the Act, a decree for eviction can be passed if the  case is  brought within the exemption clause of Section  39  not- withstanding the fact that the tenant has deposited the full amount of arrears of rent and damages together with interest and  cost as required by that section. It, therefore,  seems clear  to us on the plain language of Section 39 of the  Act that the legislature desired to grant protection from  evic- tion where the same was sought on the sole ground of arrears of  rent. In cases falling within the exemption  clauses  of that section, the legislature has 200 itself  permitted the landlord to proceed with the suit  and claim  eviction  on  any of the grounds  enumerated  in  the proviso to sub-section (1) or in clauses (b) to (g) of  sub- section (2) of Section 20 of the Act, if necessary by making the  required  amendment in the pleadings  and  by  adducing additional evidence where necessary.     It therefore seems to us that the legislature desired to limit the scope of the application of Sections 39 and 40  to suits,  appeals  and revisions pending on the date  of  com- mencement  of  the  Act, i.e. 15th July  1972,  relating  to buildings  to which the old Act did not apply and  to  which the new Act was to apply forthwith and not at a later  date. This  is clear from the fact that the  section  contemplates deposit of arrears of rent and damages together with  inter- est  and cost within one month from "such date of  commence- ment" meaning the date of commencement of the Act. To put it differently  the  section  expects the tenant  to  make  the deposit within one month from 15th July, 1972. This may  not be  possible  unless  the Act is to apply  to  the  building forthwith.  Of  course the benefit of an  extended  date  is given to those cases where the knowledge about the  pendency of  the  proceedings is gained after 15th  July,  1972.  For example where a suit is actually filed before the  commence- ment  of  the Act but the summons of the suit is  served  in October  1972,  the  tenant would be entitled  to  make  the deposit within one month from the service of the summons  to avail of the benefit of this provision. So also it can apply to cases where the tenant had died before the Act came  into force  or  before the expiry of one month from the  date  of commencement of the Act and the landlord took time to  bring the legal representative on record; in which case the  legal representative  would be entitled to seek the  benefit  from the  date of knowledge. Of course this benefit would not  be available  where  the tenant dies after the  expiry  of  the period  within which the right is to be exercised. The  same would  be  the  case in the case of an  appeal  or  revision application. It seems to us that the legislature intended to give the benefit of Sections 39 and 40 to suits, appeals  or revisions which were pending on 15th July, 1972 and in which the deposit came to be made within one month from that date. The  expression  such preceding the word  ’commencement’  is clearly suggestive of the fact that it has reference to  the date of commencement of the Act and the payment must be made within one month from such commencement. Unless we give such a restricted meaning to the section we would not be able  to advance  the legislative intent to relieve the landlords  of new buildings from the rigours of the Act. This  interpreta- tion  is  also in tune with the ratio in Ram  Swaroop  Rai’s

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case (supra). 201      was  argued that the words ’commencement of  this  Act’ should be construed to mean the date on which the moratorium period expired and the Act became applicable to the  demised buildings.  Such  a view would require this  Court  to  give different  meanings to the same expression appearing at  two places  in the same section. The words ’on the date of  com- mencement  of this Act’ in relation to the pendency  of  the suit would mean 15th July, 1972 as held in Om Prakash  Gupta (supra)  but  the  words ’from such  date  of  commencement’ appearing immediately thereafter in relation to the  deposit to be made would have to be construed as the date of  actual application  of the act at a date subsequent to  15th  July, 1972.  Ordinarily the rule of construction is that the  same expression  where  it  appears more than once  in  the  same statute,  more  so in the same provision, must  receive  the same meaning unless the context suggests otherwise  Besides, such an interpretation would render the use of prefix ’such’ before  the word ’commencement’ redundant. Thirdly  such  an interpretation  would run counter to the view taken by  this Court in Atma Ram Mittal’s case (supra) wherein it was  head that  no  man can be made to suffer because of  the  court’s fault  or court’s delay in the disposal of the suit. To  put it  differently if the suit could be disposed of within  the period of ten years, the tenant would not be entitled to the protection of Section 39 but if the suit is prolonged beyond ten  years the tenant would be entitled to such  protection. Such  an interpretation would encourage the tenant  to  pro- tract  the  litigation and if he succeeds  in  delaying  the disposal  of the suit till the expiry of ten years he  would secure  the  benefit of Section 39, otherwise not.  We  are, therefore, of the opinion that it is not possible to  uphold the argument.     In  the above view of the matter we are of  the  opinion that  the  courts  below committed an error  in  giving  the benefit of Section 39 of the Act to the tenant since  admit- tedly  the  tenant could not and had not  made  the  deposit within one month from the date of commencement of the Act on 15th  July,  1972 but had made the deposit  within  a  month after the moratorium period expired in 1977. As stated above the  legislature intended to limit the application  of  Sec- tions  39  and 40 of the Act to cases where the  Act  became applicable immediately and the deposit could be made  within one month from its applicability and not to cases where  the moratorium period was to expire long thereafter.     For  the reasons stated above we think the courts  below were  wrong in the view they took. We, therefore, set  aside the judgment and decree of the courts below by allowing this appeal. Having regard 202 to the fact that the respondent will have to look for alter- native accommodation we give him a year’s time to vacate  on condition that he pays all the arrears of rent and  damages, if  due,  within one month and files an undertaking  in  the usual  form  within even time. In the circumstances  of  the case  we  think the parties may be left to  bear  their  own costs. R.S.S.                  appeal allowed. ?203