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PETITIONER: VINEET KUMAR

       Vs.

RESPONDENT: MANGAL SAIN WADHERE

DATE OF JUDGMENT05/01/1984

BENCH: MISRA, R.B. (J) BENCH: MISRA, R.B. (J) SEN, A.P. (J)

CITATION:  1985 AIR  817            1984 SCR  (2) 333  1984 SCC  (3) 352        1984 SCALE  (1)31  CITATOR INFO :  E&D        1987 SC 294  (43)  RF         1987 SC2284  (4,5,7)  R          1988 SC2031  (6)  R          1988 SC2164  (8)             1990 SC 897  (9,10)  RF         1992 SC1106  (12)

ACT:      Uttar Pradesh  Urban Buildings  (Regulation of letting, Rent and  Eviction) Act,  1972 Section  2-Interpretation  of Whether the premises which was not ten years old on the date of the  suit and  was exempted from the operation of the new Rent Act  can be governed by it, if ten years expired during the pendency  of the litigation so as to attract the benefit of S.39  to the  tenant-Cause of  action "subsequent events" and "amendment" explained.

HEADNOTE:      Section  2   of  the   Uttar  Pradesh  Urban  Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 exempts from  operation  of  the  Act  various  kinds  of  buildings specified in  sub section  (1). Sub section (2) of Section 2 contemplates that  the new  Rent Act  will not  apply  to  a building during  a period  of ten  years, from  the date  on which its  construction is  completed. Explanation  I to sub clause (2)  enumerates the dates on which the building shall be deemed to have been completed viz., the date of which the completion thereof  is reported  to or otherwise recorded by the local  authority having jurisdiction;(ii) in the case of building subject  to assessment that date on which the first assessment thereof  comes into  effect. (iii) where the said dates are different, the earliest of the said dates and (iv) in the  absence of any report record or assessment, the date on which it is actually occupied for the first time.      The respondent  landlord filed  a suit for eviction and for arrears  of rent  and damages  for  use  and  occupation pendent lite and future on the allegation that the appellant was inducted  as a  tenant of  the premises  in  suit  on  a monthly rent  of Rs.  250 on  7th February  1972,  that  the building in  suit was      constructed  in  1971  under  the Cooperative Housing  Scheme of  the State  Bank of India for which the bank advanced loan, that the building was assessed

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to house,  and water  tax on 1st of October 1971 and as such the building  was not  covered by  the U.P.  Urban Buildings (Regulation of  Letting, Rent  and Eviction)  Act, 1972  and that the  appellant defaulted in the payment of rent despite notice dated  24th March  1977. The  appellant resisted  the suit and  contended that the new Act applied as the building in question  was constructed  in 1968,  that he  had cleared rent upto 6th April 77 and that as a matter of fact a sum of Rs. 1000  spent by  him towards repairs etc was due from the Respondent landlord.      The  Third  Additional  District  Judge  negatived  the defence and  decreed the  suit  for  eviction  as  also  for recovery  of  arrears  of  rent  and  damages  for  use  and occupation. The  trial court  found that  not only  both the conditions stated  in Section  2(2) but  also the  15 years’ exemption applied to the instant case.      The High  Court in revision accepted the finding of the trial judge that the 334 building in  question will  be deemed to have been completed on 1st October 1971, the date of assessment of house tax and water tax  and calculating  from that  date the building was not ten years old on the date of the suit and therefore, the new rent  Act had no application to the building in suit and the appellant  cannot get any protection of the Rent Control Act. The  High Court  confirmed the  findings of  the  trial court on  all other  points except  the finding of the trial court on  all other  points except  the  finding  about  the amounts of rent and the allowed the appeal in part.      Allowing the appeal partially, the Court ^      HELD: 1:1.  The provision  of the  Uttar Pradesh  Urban Building (Regulation of Letting, Rent and Eviction) Act 1972 will be  attracted, if  the  building  completes  ten  years during the course of litigation.[340 G-H]      1:2. In  the instant  case, the building will be deemed to have  been completed  on the date of assessment which was Ist October,  1971. Reckoning  from this date of completion, the new  Rent Act  would become  applicable. Admittedly  the building was  not ten  years old  on the  date of  suit. But during the pendency of the litigation it completed ten years by 23rd  February 1982  when the  Additional District  Judge decided the  case, entitling  the  appellant  to  claim  the benefit of Section 39 of the Act. [340 B-D]      Om Prakash  Gupta v.  Dig Vijendrapal  Gupta  [1982]  2 S.C.C. 61; distinguished  and held in applicable.      1:3. In  the present  case, the benefit of the new Rent Act should  be given  to the  appellant who  only seeks  the protection of  the new  Rent Act  which became applicable to the  premises   in  question  during  the  pendency  of  the litigation.[340 C-D]      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.(4)  of s.20 stipulates that in any suit for eviction on the grounds mentioned in cl.(a) to sub- s.(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-s.(1) of s.30, the  court may,  in  lieu  of  passing  a  decree  for

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eviction on  that ground, pass on 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 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 necessary  amendment   in  their  pleadings  and  to  adduce additional evidence where necessary.[342 D-G]      2:1. Normally  the Court  has to decide the case on the basis of  cause of  action that accrued prior to the date of filing the suit and not on a new cause of action. But it can and  in  many  cases  must  take  into  account  events  and developments subsequent to the institution of the proceeding provided     the  rules   of  fairness  to  both  sides  are scrupulously obeyed".[341 A;F] 335      Pasupati   Venkateswarlu    v.   Motor    and   General Traders,[1975] 1 S.C.C. 770; applied.      2:2. Normally  amendment is  not allowed, if it changes the cause  of action.  But it  is well recognised that where the amendment 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 record, the amendment would be   allowed    even   after   the   statutory   period   of limitation.[341 G]      A.K Gupta  & sons  v Damodar  Valley Corporation,[1966] 1.S.C.R. 796;; referred to.

JUDGMENT: CIVIL APPELLATE  JURISDICTION: Civil  Appeal  No.  10144  of 1983.      Appeal by  Special leave  from the  Judgment and  Order dated the  20th July,  1983 of  the Allahabad  High Court in Civil Revision No. 237 of 1983.      G.L. Sanghi, K.K.Jain, A.D. Sanger and Pramod Dayal for the Appellant.      J.D. Jain,  Mrs Kawaljit  Kochar and S.R. Yadav for the Respondent.      The Judgment of the Court was delivered by      MISRA, J.  The  present  appeal  by  special  leave  is directed against the judgment of the High Court of Allahabad dated 20th July, 1983 disposing of a revision under s.25. of the Small  Causes Court Act arising out of suit for eviction of the appellant from the premises in suit.      The respondent  filed  a  suit  for  eviction  and  for arrears of  rent and  damages for use and occupation pendent lite and  future on  the allegation  that the  appellant was inducted as  a tenant  of the  premises in suit on a monthly rent of  Rs. 250 on 7th February, 1972, that the building in suit was  constructed in 1971 under the co-operative housing scheme of  the State  Bank  of  India  for  which  the  Bank advanced loan.  The building  in suit  was assessed to house and water  tax on 1st October. 1971 and as such the building was not  covered by  the U.P. Urban Buildings (Regulation of letting, Rent  and Eviction) Act, 1972 (hereinafter referred to as  the new  Rent Act  for short), and that the defendant defaulted in  the payment  of rent despite notice dated 24th March, 1977. The Respondent therefore terminated the tenancy of the appellant. 336      The claim  was resisted  by the appellant on the ground that the  building in  question was  constructed in 1968 and that it  was covered  by the new Rent Act. His further stand

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was that  rent had  been cleared  upto 6th  April, 1977  and there was  no default  in  the  payment  of  rent.  He  also challenged the  service  and  the  validity  of  the  notice terminating his  tenancy. The  appellant  also  claimed  the adjustment of  Rs. 1000  spent by him towards the repairs of the premises.  By a  later amendment  it was further pleaded that the  plaint having  not been amended so as to bring the suit under  the provisions  of the new Rent Act the suit was barred by s.20 of the Act.      The  Third  Additional  District  Judge  negatived  the defence and  decreed the  suit  for  eviction  as  also  for recovery  of  arrears  of  rent  and  damages  for  use  and occupation. The  learned Judge  held that  the building  was exempt from  the operation  of  the  new  Rent  Act  on  two grounds. The  first grounds. was based upon sub-s.(2) of s.2 which provides  that nothing  in this  Act shall  apply to a building during  the period  of ten  years from  the date on which its  construction is  completed. The second ground was based  upon   the  proviso   to  sub-s.(2)   of  s.2,  which contemplates that  where a  building  has  been  constructed substantially out  of funds  by way  of loan or advance from the State Government, or Life Insurance Corporation of India or a  bank or  a Co-operative  society, and  the  period  of repayment of  such loan  or advance  exceeds  the  aforesaid period of ten years, then reference in this sub-section to a period of  ten years  shall be deemed to be a reference to a period of  fifteen years  or the period ending with the date of actual  repayment of  each loan or the period ending with the date  of actual  repayment  of  each  loan  of  advance, including  interest,  whichever  is  shorter.  As  the  last instalment of  the loan  was paid  in March 1981, instead of ten years  the building  should  be  fifteen  years  old  to attract the  provisions of  the new  Rent Act.  He also held that the  appellant had  failed to  prove that the spent Rs. 1000 towards  repairs of  the premises.  The  learned  Judge overruled the  other pleas  of the appellant and decreed the suit as prayed for.      The appellant feeling aggrieved preferred a revision in the High  Court. It was contended for the appellant that the building in  question had been constructed by a co-operative society and  the landlord  had purchased it from the society and, therefore, the view taken by the learned Judge that the building was constructed substantially out of funds obtained from the  sources mentioned  in the proviso to s.2(2) of the new Rent  Act was  manifestly  erroneous.  The  High  Court, however, did  not express  any concluded  opinion  and  rest contended by  observing that it was not necessary to examine the submission 337 in any  detail or  to express any concluded opinion about it for disposal  of  the  present  revision.  The  High  Court, however, accepting  the finding  of the  learned  Additional District Judge  that the building in question will be deemed to have  been completed  on 1st  October, 1971,  the date of assessment of house tax and water tax held that the building was not  ten  years  old  on  the  date  of  the  suit  and, therefore, the  new Rent  Act  had  no  application  to  the building in suit and the appellant cannot get any protection of the new Rent Act.      The High  Court confirmed  the findings  of  the  trial Court on  all other  points except  the  finding  about  the arrears of rent. In the opinion of the High Court admittedly a sum  of Rs.  1000-had been  paid by  the appellant  to the landlord through  a crossed  cheque dated  16th August, 1976 which was  received by the landlord on 15th September, 1976.

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But when  the plaintiff  was in  the witness  box payment by cheque was  not specifically  put to him and it has not been established as to for which period the payment by cheque was made. The  counter-foil of  the cheque  book  also  did  not specify the  period for  which this  payment by  cheque  was made. The  High Court,  however, did not endorse the finding of the  Additional District  Judge that  the payment through the cheque  may have been made by the appellant towards rent for some  period prior  to April  7, 1976  and held it to be manifestly erroneous and without any basis.      In the result High Court allowed the appeal in part and set aside  the decree  of the  trial court  relating to  the recovery of  Rs.3158-30 as  arrears of  rent for  the period between April  7, 1976  and April  25, 1977 and remanded the case to the trial court for redetermination of the amount of rent in  arrears payable  by the  appellant after  affording opportunity to  the plaintiff  to explain the payment of the amount of Rs. 1000-through cheque dated August 16, 1976. The trial court  was further  directed to  afford opportunity to the parties  to adduce  further evidence  in regard  to this aspect.      The appellant  has now  approached this  Court with  an application for special leave to appeal.      On the date of summary hearing of the application under Art. 136  of the  Constitution we  granted special leave and with the  consent of  the counsel for the parties we finally heard the appeal to obviate further delay. 338      The only  point argued before this Court is whether the premises which  was not  ten years’  old on  the date of the suit and  was exempted  from the  operation of  the new Rent Act, can  be governed  by it if ten years expired during the pendency of  the litigation.  In  order  to  appreciate  the contention of  the parties it will be relevant at this stage to refer to s 2 of the new rent Act. It pertinently reads:           "2. Exemption  from operation  of Act.-(I) nothing      in this Act shall apply to-      (a).............      (b).............      (c).............      (d).............      (e).............      (f)     any  building  built  and  held  by  a  society           registered under  the Societies  registration Act,           1860 (Act  No. LVIII of 1860) or by a Co-operative           society, company  or firm  and intended solely for           its own occupation or for the occupation of any of           its officers  or servants, whether on rent or free           of rent,  or as  a guest  house, by  whatever name           called,  for  the  occupation  of  persons  having           dealings  with   it  in  the  ordinary  course  of           business.      (2)  Except as  provided in  sub-section (5) of Section      12, sub-section  (IA-) of section 21, sub-section(2) of      Section 24,  Section 24-A 24-B, 24-C or sub-section (3)      of Section  29 nothing  in this  Act shall  apply to  a      building during  a period of ten years from the date on      which its construction is completed:      Provided  that   where  any   building  is  constructed      substantially out  of funds  obtained by way of loan or      advance from the State Government or the Life Insurance      Corporation of  India  or  a  bank  or  a  co-operative      society or  the Uttar Pradesh Avas Evam Vikas Parishad,      and the  period of  repayment of  such loan  or advance      exceeds the  aforesaid period  or ten  years  then  the

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    reference in  this sub-section  to the  period  of  ten      years shall  be deemed  to be a reference to the period      of ten  years or  the period  ending with  the date  of      actual repayment  of each  loan or  advance  (including      interest), whichever is shorter. 339      Explanation I. For the purposes of this sub-section-      (a)  the construction  of a building shall be deemed to           have been  completed on  the  date  on  which  the           completion thereof  is reported  to  or  otherwise           recorded   by    the   local    authority   having           jurisdiction and in the case of a building subject           to  assessment   the  date   on  which  the  first           assessment thereof comes into effect and where the           said dates are different, the earliest of the said           dates, and  in the  absence of  any  such  report,           record or  assessment, the  date, on  which it  is           actually occupied (not including occupation merely           for the  purposes of  supervising the construction           or guarding,  the building under construction) for           the first time.           Provided that  there may  be  different  dates  of      completion of  construction  in  respect  of  different      parts of  a  building  which  are  either  designed  as      separate  units  or  are  occupied  separately  by  the      landlord and  one  or  more  tenants  or  by  different      tenants:      Explanation II-.......................................      Explanation  III-A  building  shall  be  deemed  to  be      constructed substantially  out of  funds obtained  from      sources mentioned in the proviso, if the funds obtained      from one  or more of such sources account for more than      one-half of the cost of construction."      Section  2   of  the  Act  provides  various  kinds  of buildings to  which the  new   Rent Act  has no application. Sub-section (2)  of s.2  contemplates that the  new Rent Act will not  apply to  a building  during a period of ten years from the  date  on  which  its  construction  is  completed. Explanation I to sub-s.(2) enumerates the dates on which the building shall be deemed to have been completed :-      (i)   The date  on  which  the  completion  thereof  is           reported to  or otherwise       is recorded by the           local authority having jurisdiction.      (ii) In  case of  building subject  to assessment, that           date on  which the  first assessment thereof comes           into effect.       (iii) where the said dates are different, the earliest           of the said dates. 340      (iv) In  the absence  of any  such  report,  record  or           assessment  the  date  on  which  it  is  actually           occupied for the first time.      In the  case  in  hand  the  building  was  subject  to assessment  therefore   it  will  be  deemed  to  have  been completed on  the date  of assessment which was 1st October, 1971. The  Additional District  Judge  has  found  that  the building will  be deemed  to have been completed on the date of assessment  of the  house which  has been accepted by the High Court.      The moment  a building  becomes ten  years  old  to  be reckoned from the date of completion, the new Rent Act would become applicable. Admittedly the building was not ten years old on  the date  of suit.  But during  the pendency  of the litigation it  completed ten years. Then the question arises whether the  new Rent  Act will be attracted if the building

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completes ten  years during  the course  of litigation.  The Additional District  Judge decided the case on 23rd February 1982. By  that time  the building  in question had completed ten years.      The trial  court, however, relying on a recent decision of this Court in Om Prakash Gupta v. Dig Vijendrapal Gupta ) refused to  apply the  new  Rent  Act  to  the  building  in question. In  that case  a contention  was raised  that  the building will be deemed to have been constructed on the date of occupation  on 16th June, 1967 and not on the date of the first assessment  and if  that be so, the appellant would be entitled to  the benefit of s.39 of the Act on the date when the revision  came to  be decided by the High Court. On 23rd March, 1978.  This Court,  however, held that it is the date of the  first assessment which will be deemed to be the date of completion  of the  construction in  the circumstances of the case and in that view of the matter the building had not become more than ten years old on the date when the revision came to  be decided  by the High Court and, therefore, there was no  question of giving the benefit of s.39 of the Act to the appellant.  It was  not at all necessary in that case to deal with  the  question  whether  the  appellant  would  be entitled to  the benefit  of s.39  as the  building had  not become ten years old on the date their the revision petition was heard.  In the  instant case,  however, the building had become more  than ten  years old  during the pendency of the litigation and,  therefore, the  question assumes importance in the present case. 341      It may  be argued that the Court had to decide the case on the  basis of  cause of  action that accrued prior to the date of  filing the  suit and  not on a new cause of action, but this  question need  not detain  us as  it is covered by decision of this Court in Pasupati Venkateswrlu v. Motor and General Traders.(1)  Dealing with  a similar  question  this Court observed:           "It is  basic to our processual jurisprudence that      the right  to relief  must be judged to exist as on the      date a  suitor institutes the legal proceeding. Equally      clear is  the principle  that procedure is the handmaid      and not  the mistress  of the  judicial process.  If  a      fact, arising after the lis has come to court and has a      fundamental impact on the right to relief or the manner      of moulding  it, if brought diligently to the notice of      the tribunal,  it cannot  blink at  it or  be blind  to      events which  stultify or  render  inept  the  decretal      remedy.  Equity   justifies  bending   the   rules   of      procedure, where  no specific provision or fair play is      not  violated,  with  a  view  to  promote  substantial      justice-subject, of  course to  the  absence  of  other      disentitling factors  or just circumstances. Nor can we      contemplate any  limitation on  this power to take note      of updated  fact to  confine it  to the trial Court. If      the litigation  pends, the  power exists,  absent other      special circumstances  repelling resort  to that course      in law  or justice.  Rulings on  this point are legion,      even as  situations for  applications of this equitable      ruled are  myriad. We  affirm the  proposition that for      making the  right or  remedy claimed  by the party just      and meaningful as also legally and factually in legally      and factually in accord with the current realities, the      Court can,  and  in  many  cases  must,  take  cautious      cognizance of events and developments subsequent to the      institution of  the proceeding  provided the  rules  of      fairness to both sides are scrupulously obeyed."

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    Normally amendment  is not  allowed if  it changes  the cause of  action. But  it is  well recognised that where the amendment 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 amendments would  be   allowed  even  after  the  statutory  period  of limitation. The  question in  the present case is whether by seeking the benefit of s.39 of the new Act there is a change in the cause of action. In A.K. Gupta & Sons. v. Damodar 342 Valley Corporation  this Court  dealing with  the  cause  of action observed as follows:           "The expression  "cause of  action" in the present      context does  not mean  every fact which it is material      to be  proved to  entitle the  plaintiff to succeed" as      was said  in Cooks  v. Gill(2)  in a different context,      for if  it were  so, no  material fact  could  ever  be      amended or  added and,  of course, no one would want to      change or  add an  immaterial allegation  by amendment.      That expression  for the  present purpose only means, a      new claim made on a new basis constituted by new facts.      Such a  view was  taken in  Rabinson v. Unicos Property      Corporation Ltd.(3)  and it  seems to us to be the only      possible view  to take.  Any other  view would make the      rule futile."      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  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 s.20  stipulates that  in  any  suit  for eviction on  the grounds mentioned in cl. (a) to sub-s. (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  deposit 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  there  from  any amount already  deposited by  the tenant under sub-s. (1) of s.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 of the new Act will be given to the tenant if the conditions comtemplated in  those sections  are satisfied.  Section  39 also  indicates  that  the  parties  are  entitled  to  make necessary  amendment   in  their  pleadings  and  to  adduce additional evidence where necessary.      For the reasons given above the appeal must succeed. It is accordingly  allowed in  part and the judgment and decree of the High 343 Court is  set aside  in so far as it relates to eviction but the judgment  of the High Court setting aside the decree for arrears of  rent and  remanding the  case to the trial court remains intact,  and the  case  is  sent  back  to  the  III Additional District  Judge who  will apply  the new Rent Act and give  the protection of the new Act to the appellant and will  give   him  an   opportunity  to   deposit  the   dues contemplated by  s.39  of  the  new  rent  Act  after  first determining whether  any amount  is due  from the  appellant

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towards rent  as directed  by the High Court. The costs here will abide the result. S.R.                                 Appeal allowed in part. 344