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PETITIONER: BANARSI LAL

       Vs.

RESPONDENT: SMT. SAGHIRAN BEGUM

DATE OF JUDGMENT03/05/1988

BENCH: OJHA, N.D. (J) BENCH: OJHA, N.D. (J) PATHAK, R.S. (CJ) KANIA, M.H.

CITATION:  1988 AIR 1318            1988 SCR  (3) 820  1988 SCC  (3) 124        JT 1988 (2)   315  1988 SCALE  (1)1161

ACT:      Urban  Buildings  (Regulations  of  Letting,  Rent  and Eviction) Act  1972-Sections 39 and 40-Tenant making deposit and claiming  entitlement to  be absolved from liability for eviction-Amount deposited to include costs of suit-Costs are taxable costs made payable by tenant to landlord.

HEADNOTE:      In  a   suit  for   ejectment  filed  by  the  landlord respondent a  decree for  eviction from  a shop  was  passed against the tenant-appellant on 19th August, 1971. The Trial Court however  directed the parties to bear their own costs. During the  pendency of  the tenant’s appeal, the U.P. Urban Buildings (Regulation  of Letting,  Rent and  Eviction) Act, 1972 was  enforced with  effect from  15th July,  1972.  The appellant made  the deposit  contemplated by section 39 read with section  40 of  the Act  within one  month in the lower appellate court  and asserted that in view of the deposit so made he  was entitled  to be absolved from his liability for eviction. The deposit, however, did not include the costs of the suit.      The landlord contested the tenant’s claim on the ground that since  the costs  of the  suit had  not been  deposited within time,  the tenant  was not entitled to the benefit of section 39  read with  section 40.  In defence,  the  tenant urged that since the trial Court had directed the parties to bear their  own costs  the benefit of the aforesaid sections could not  be denied  to him.  In the  alternative,  it  was asserted that  the delay  in the deposit of costs was liable to be  condoned. These  contentions did not find favour with the lower  appellate court  and it dismissed the appeal with costs. The  tenant’s second appeal was also dismissed by the High Court.  The High  Court held that the costs of the suit had to  be deposited notwithstanding the fact that the trial court had  directed the  parties to  bear their  own  costs. According to  the High  Court, the  words  ’landlord’s  full costs of  the suit’  were not  the same  thing as  the costs awarded to  the plaintiff  in a  suit but  really meant  all those taxable  costs which were capable of being ascertained on the  date of  the deposit.  In this  Court the  appellant

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reiterated the pleas raised in the courts below.      Allowing the appeal, it was, 821 ^      HELD: (1)  Irrespective of  the actual  amount of costs that may have been incurred by the landlord in prosecuting a suit, he  is entitled  to recover  from the tenant only such costs which  in law  are known as taxable costs and are made payable to the landlord. [824E]      (2) Non-deposit  of such costs which, either on account of the  relevant rules  or some  specific order of the court are not payable by the tenant to the landlord on the date of deposit contemplated by section 39 or 40, cannot deprive the tenant of  the benefit  of these two sections. The fact that in appeal  there was a possibility of costs of the suit also being awarded to the landlord by reversing the decree of the trial court in this behalf will not be material. [824H;825A]      (3) In cases falling under this category, the appellate or revisional  court in  order to safeguard the interests of the landlord  and to  give effect  to the  intention of  the legislature expressed  in section 39 read with section 40 of the Act,  will require the tenant to deposit such costs also in supersession  of the  decree or  order of the subordinate court in  this behalf before passing an order giving him the benefit of these sections. [825E]      (4) The  appellant  was  entitled  to  the  benefit  of section 39  read with  Section 40  of  the  Act  and  to  be absolved from  his liability  to be evicted from the shop in question. [826G-H]      Krishna Kumar  Gupta v.  Additional District  Judge IV, [1987] 2  S.C.R. 638;R.D.  Ram Nath  & Co.  v. Girdhari Lal, [1975] A.L.J.  1 and  Smt. Phoolwati  v. Gyan  Chand  Verma, [1985] All L.J. 1, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 5858 of 1983.      From  the  Judgment  and  Order  dated  5.5.83  of  the Allahabad High Court of in S.A. No. 1281 of 74.      S.K. Bisaria,  A.P.  Malhotra,  J.K.  Nayyar  and  R.S. Sharma for the Appellant.      Shakil Ahmed Syed for the Respondent.      The Judgment of the Court was delivered by 822      OJHA, J.  This is  a tenant’s  appeal by  special leave against the judgment of the Allahabad High Court dismissing, his second appeal arising out of a suit for ejectment of the appellant filed  by the  landlord respondent in respect of a shop. One  of the  questions which came up for consideration in the suit was as to whether the U.P. (Temporary Control of Rent and  Eviction) Act,  1947 (U.P. Act III of 1947) was or was not  applicable to the shop in question. The trial court held that  the said  Act was  not  applicable.  Other  pleas raised in  defence by  the appellant having failed, a decree for eviction  and  for  recovery  of  damages  for  use  and occupation was  passed against him on 19th August, 1971. The trial court, however, directed the parties to bear their own costs. Against  that decree  an appeal  was preferred by the appellant. During the pendency of the appeal, the U.P. Urban Buildings (Regulation  of Letting,  Rent and  Eviction) Act, 1972 (U.P.  Act 13  of 1972), hereinafter referred to as the Act, was  enforced with  effect from  15th July,  1972.  The appellant made  deposit contemplated by Section 39 read with

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Section 40  of the  Act on  19th July, 1972, that is, within one month  from 15th  July, 1972,  which was the date of the commencement of  the Act,  in the  lower appellate court and asserted that in view of the deposit so made he was entitled to be  absolved from  his liability  for eviction  from  the disputed shop.  The amount  so deposited,  however, did  not include the  costs of  the suit. Subsequently, the appellant was permitted  to deposit  even the costs of the suit by the lower appellate court but at his own risk.      In regard  to the  claim of  the appellant  that he was entitled to  be absolved  from his liability for eviction on account of  the deposit  made by  him on 19th July, 1972, it was urged  on behalf  of the  landlord respondent that since the costs  of the  suit  had  not  been  deposited  and  the subsequent deposit thereof was beyond one month contemplated by Section  39 of the Act, the appellant was not entitled to the benefit  of the  said Section  read with Section 40. For the appellant,  on the  other hand,  it was urged that since the trial  court had  directed the parties to bear their own costs the  benefit of  the aforesaid  Sections could  not be denied to  him for  non-deposit of the costs of the suit. In the alternative, it was asserted by him that since the costs even of  the suit  were deposited  subsequently the delay in the deposit  was liable to be condoned. However, neither the main plea  nor the  alternative plea  found favour  with the lower appellate  court and  it  dismissed  the  appeal  with costs. It  further passed a decree for the costs of the suit also in  favour of  the landlord-respondent  by allowing the cross-objection filed by her in this behalf. 823      Aggrieved by  the decree  passed by the lower appellate court the  appellant preferred  a second  appeal  which  was dismissed  by  the  High  Court  by  the  judgment  appealed against. The pleas which were raised by the appellant before the lower  appellate court  and the  High Court in regard to the scope of Section 39 read with Section 40 of the Act have been reiterated before us by his learned counsel. In support of his  alternative submission  that the delay in depositing the costs  of the  suit deserved to be condoned, the learned counsel for  the appellant  placed reliance on a decision of this Court in Krishna Kumar Gupta v. Addl. District Judge IV and others, [1987] 2 R.C.R. 638. On the facts of the instant case, however,  we do  not find  it necessary to go into the question  as   to  whether   the  delay  in  making  deposit contemplated by Section 39 can be condoned or not because in our opinion  the appeal  deserves to  be allowed on the main submission  made  by  learned  counsel  for  the  appellant, namely, that  since the trial court had directed the parties to bear  their own  costs as  a result of which the costs of the suit  were not  payable by  the appellant on the date of the deposit,  the non-deposit  of the  said costs within one month from  15th July, 1972 as contemplated by Section 39 of the Act  could not  deprive him  of the  benefit of the said Section. What  was the  true import  of the expression ’full costs’  used   in  Section  39  of  the  Act,  came  up  for consideration before  a Division Bench of the Allahabad High Court in  R.D.Ram Nath & Co. and another v. Girdhari Lal and another, [1975]  A.L.J. Page 1. In so far as is relevant for the present case it was held:                "The expression  ’full costs  of the suit’ in           respect of  a  pending  suit  will  represent  the           amount of  court fee  paid on  the plaint  and  on           other  documents   and  other   taxable   expenses           incurred by  the landlord  by the  date of deposit           together with  such amount  of the  Advocate’s fee

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         and the  fee of  his clerk  as is  taxable on  the           contested scale whether any certificate of fee has           or has not been filed by the date of deposit.                In case  of a  first appeal or revision filed           against a  decree or  order of  the trial court it           will represent  the costs  awarded to the landlord           in the  decree or  order together  with the amount           paid as  court fee  on the memorandum of appeal or           revision and  other documents  and  other  taxable           expenses  incurred   in  the  first  appellate  or           revisional court  including the Advocate’s fee and           the fee  of his  clerk which are to be computed in           the manner stated above." 824      This decision  was cited  before the  learned Judge who decided  the   appellant’s  second  appeal  with  particular emphasis on  the words ’the costs awarded to the landlord in the decree  or order’  with regard to the deposit to be made in case of a first appeal or revision filed against a decree or order  of the  trial court.  The learned  Judge, however, took the view that since an appeal was a continuation of the suit the  aforesaid words  appear to  have been mentioned by the Bench  rather loosely.  He also pointed out that in case the cross-objection  filed by  the landlord  was  ultimately allowed the  costs of  the trial  court would become payable and in  this view  of the  matter also the costs of the suit had to  be deposited notwithstanding the fact that the trial court had  directed the  parties to  bear their  own  costs. According to  the learned  Judge the  words ’landlord’s full costs of  the suit’  were not  the same  thing as  the costs awarded to  the plaintiff  in  a  suit  and  that  the  word ’landlord’ had been used in Section 39 purposely in order to distinguish it  from the  plaintiff of  the suit. He further took the  view that  ’landlord’s full  costs of the suit’ in Section 39  really meant  all those taxable costs which were capable of being ascertained on the date of the deposit.      Having heard learned counsel for the parties we find it difficult to  agree with  the view that the words ’the costs awarded to  the landlord  in the  decree or order’ were used loosely. Irrespective of the actual amount of costs that may have been  incurred by the landlord in prosecuting a suit he is entitled to recover from the tenant only such costs which in law  are known  as taxable  costs and are made payable by the tenant  to the  landlord. The matter may be clarified by an illustration.  Take a  case where  court fee in excess of what is  prescribed has  been actually paid by the landlord. Notwithstanding such  payment the  tenant, even  on the suit being decreed  with costs,  will not  be liable  to pay  the excess amount  of court fee, inasmuch as law does not permit it to  be taxed. The same would be the position in regard to the fee  paid by  the landlord  to his  counsel in excess of such fee as is taxable. For this reason even though the word ’taxable’ has  not been  prefixed to the words ’costs of the suit’ in Section 39 of the Act, the concept of taxable costs has been introduced therein in the process of interpretation of the  said Section.  On principle,  we do  not  find  much difference in  a  case  where  the  costs  incurred  by  the landlord have  been made  specifically not  payable  by  the tenant to the landlord by a decree or order of the court. In our opinion  non-deposit of  such  costs  which,  either  on account of  the relevant rules or some specific order of the court are  not payable  by the tenant to the landlord on the date of  deposit contemplated  by Section  39 or  40, as the case may be, cannot deprive the 825

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tenant of  the benefit  of these two sections. The fact that in appeal  there was a possibility of costs of the suit also being awarded to the landlord by reversing the decree of the trial court  in this  behalf will,  in our  opinion, not  be material.      As regards  the use  of the word ’landlord’ in place of the word  ’plaintiff’ in Section 39 of the Act suffice it to point out  that since  the  Act  deals  with  landlords  and tenants the  word ’landlord’  was used in Section 39 also as it was  used in  various other sections. This circumstances, in our  opinion, could  not be used for holding that even if costs are not payable to the landlord on the date of deposit because of  some specific  order of the court it would still be payable.      We would, however, like to emphasise that since Section 39 contemplates deposit of full costs of suit also, in cases falling under  this category,  namely, where  because  of  a decree or  an order  passed by the court below depriving the landlord of  his costs,  the tenant is not liable to pay the amount of costs on the date when the deposit contemplated by Section 39  read with  Section 40  of the  Act is made in an appellate or  revisional  court,  such  court  in  order  to safeguard the  interests of  the landlord and to give effect to the  intention of the legislature expressed in Section 39 read with  Section 40  of the Act will require the tenant to deposit such  costs also  in supersession  of the  decree or order of  the subordinate  court in  this behalf,  if  other conditions of  these two  sections have  been complied with, before passing  an order  giving him  the benefit  of  these sections, namely,  of absolving  him from  his liability for eviction from  the premises in question. Such a course would meet the ends of justice and safeguard the interests of both the parties.  In  doing  so,  in  cases  falling  under  the aforesaid category,  the court will neither be condoning any default nor  extending the  time for depositing costs of the suit beyond  the date contemplated by Section 39, in as much as on  that date  such costs  were not payable by the tenant because of  an order  of court passed in this behalf. In the instant  case  the  costs  of  the  suit  had  already  been deposited by  the tenant  and only  an order  permitting the landlord to withdraw the same was needed.      The learned  counsel for  the landlord-respondent while supporting the  judgment appealed against placed reliance on a subsequent  decision by  Division Bench  of the  Allahabad High Court  in  Smt.  Phoolwati  v.  Gyan  Chand  Verma  and another, [1985] ALL. L.J. Page 826 1. It  was pointed out by him that the judgment under appeal in the  instant case  on the  point in  question,  has  been approved in  the case  of Smt.  Phoolwati  (supra).  In  our opinion, the  decision in the case of Smt. Phoolwati (supra) is distinguishable  on facts.  That was  a case where during the pendency  of the suit the landlord had sought permission to file  some papers  but  her  application,  made  in  this behalf, was  rejected by the trial court. Against that order the landlord  preferred a  revision which  was allowed  with costs which  amount, as quantified in the formal order, came to Rs.132.10.  The amount  which was deposited by the tenant in order  to claim  the benefit  of Section  39 of  the Act, however, did not include this sum. It was urged on behalf of the tenant that since the sum of Rs.132.10 represented costs awarded in a revision arising not out of the main decree but out of  an interlocutory  order it  was not  necessary to be deposited. This  plea was  repelled and in doing so reliance was indeed  placed on  the decision  in the case of R.D. Ram

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Nath &  Co. (supra). Emphasis was placed on the words ’other taxable expenses  incurred’ occurring  in that  part of  the judgment in  the case  of R.D.  Ram Nath & Co. (supra) which has been  extracted above.  Another circumstance  which  was relied on  by the  tenant in  that case was that even though the  revision  against  the  interlocutory  order  had  been dismissed with  costs, the  amount of  Rs.132.10 even though mentioned in  the formal  order  was  not  included  in  the ultimate decree  which was passed in the suit. It is in this background  that  it  was  held  that  the  said  amount  of Rs.132.10 fell  within the  expression of  ’landlord’s  full costs of  the suit’ notwithstanding the fact that it was not shown in  the decree.  It was  thus a  case where the sum of Rs.132.10 had  specifically been  made payable by the tenant to the  landlord in  the revision  against the interlocutory order but  for some reason was omitted to be included in the ultimate decree.  It was  not a  case where the costs of the revision had  been directed  to be  borne by  the parties so that it  was rendered  not payable  by the tenant. Since the question in  regard to the effect of costs not being allowed by a  decree or  order did  not arise  in the  case of  Smt. Phoolwati (supra) there was really no occasion to approve in that case the judgment appealed against in the instant case.      In view  of the  foregoing discussion  we  are  of  the opinion that  on the facts of the instant case the appellant was entitled  to the benefit of Section 39 read with Section 40 of  the Act  and to  be absolved from his liability to be evicted from  the shop in question on account of the deposit made by  him on  19th July,  1972 referred  to above. In the result, this  appeal succeeds and is allowed and the suit of the plaintiff 827 respondent in  so far  as the eviction of the appellant from the  shop  in  question  is  concerned,  is  dismissed.  The landlord-respondent  shall   be  entitled  to  withdraw  the various amounts  including costs  of suit  deposited by  the tenant-appellant in  the courts  below. In the circumstances of the case, however, the parties shall bear their own costs of this appeal. R.S.S.                                  Appeal allowed. 828