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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7988 OF 2015  (Arising out of S.L.P. (Civil) No. 9202 of 2012)

Samar Pal Singh                      … Appellant

Versus

Chitranjan Singh                    …Respondent

J U D G M E N T

Prafulla C. Pant, J.

       This appeal is directed against judgment and order dated

20.12.2011,  passed  by  the  High  Court  of  Judicature  at

Allahabad in Civil Revision No. 8 of 1990 whereby the revision

filed by the defendant No.1 is allowed, and order of eviction

against the tenants passed by Judge, Small Causes Court/Xth

Additional District Judge, Meerut, is set aside.

2. We  have  heard  learned  counsel  for  the  parties  and

perused the papers on record.

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3. Brief facts of the case are that plaintiff No.1/appellant is

owner and landlord of house bearing municipal no. 831 (old

no. 446), situated in Mowana, District Meerut. The house was

let out to Nawab Singh (father of the respondents) and a rent

note (Annexure P-2) was executed on 15.02.1975. The building

under  lease  consists  of  ground  floor  used  for  commercial

purposes  and the first floor for the residential purpose.  It was

pleaded by the plaintiffs that the defendants stopped payment

of rent of  the building, after August, 1981. Consequently,  a

notice on 16.08.1982 was served on the defendants, and when

they failed to pay rent within one month of service of notice, a

suit for eviction and recovery of arrears of rent was filed by the

plaintiffs  before  Judge,  Small  Causes  Court/District  Judge,

Meerut.

4. Only defendant no.1 (respondent before us) contested the

suit  and  filed  written  statement.  It  is  admitted  that  the

plaintiff/appellant is the landlord of the house in question. It

is  also admitted that  property was let  out  to Nawab Singh,

father of answering defendant, on rent at the rate of Rs.440/-

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per month. However, it is denied that there was any default in

payment of rent, on the part of the defendants. It is stated that

no notice of demand of arrears of rent and termination of the

tenancy was served on the defendants. In the additional pleas,

the answering respondent has stated that the rate of rent was

only Rs. 200/- per month which was paid up to December,

1981 to Kishan Pal Singh (father of plaintiff no.1). It is further

pleaded  that  thereafter,  the  rent  was  not  accepted  by  the

landlord.  It  is  pleaded  that  answering  defendant  tendered

amount of  Rs. 20,000/- before the trial  court in May, 1984

which  included  arrears  of  rent,  nine  percent  interest  and

costs.  As  such,  in  view  of  the  provision  contained   in

sub-section (4) of Section 20 of Uttar Pradesh Urban Buildings

(Regulation of Letting, Rent and Eviction) Act, 1972 (for short

“U.P. Act No. 13 of 1972”), the defendants are protected from

the decree of eviction, and the suit is liable to be dismissed.

5. The trial court framed following issues on the basis of the

pleadings of the parties:-

“1. Whether defendants are in arrears of rent from 01.09.1981 and have committed default?

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2. Whether rate of rent is Rs.440/- per month as alleged by the plaintiff or is Rs.200/- per month as alleged by the defendant?

3. Whether  the  plaintiff  has  served valid  notice upon the defendants u/s 106 Transfer of Property Act?

4. Whether defendant is entitled to the benefits of the   provisions of Section 20 (4) of the U.P. Act 13 of 1972?

5. To what relief, if any, is the plaintiff entitled?”

6. The  parties  led  their  oral  and  documentary  evidence

before the trial court. After hearing the parties, all the issues

were  decided  in  favour  of  the  plaintiffs,  and  the  suit  was

decreed for ejectment of the defendants from accommodation

in question, and also for arrears of rent amounting Rs.5,632/-

and  mesne  profits  at  the  rate  of  Rs.440/-  per  month  till

dispossession of the defendants. Aggrieved by said judgment

and decree dated 06.12.1989,  passed in SCC Suit  No.  5 of

1983 by Judge, Small Causes Court/ Xth Additional District

Judge,  Meerut,  Civil  Revision was filed under Section 25 of

Provincial Small Causes Court Act, 1887 which was allowed by

the High Court vide impugned order, challenged before us, in

this appeal.

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7. The High Court has not  disturbed the findings of  trial

court on issue Nos. 1, 2 and 3. The High Court has observed

in its order that the defendants have not disputed the findings

of the trial court on issue Nos. 1, 2 and 3, as such, the same

have attained finality. The only findings on issues No. 4 to 5

were  challenged  before  the  High  Court  which  relate  to

provision contained in sub-section (4) of Section 20 of U.P. Act

No. 13 of 1972.

8. Clause (a) of sub-section (2) of Section 20 of U.P. Act No.

13 of 1972 allows a landlord to seek eviction of tenant from a

building after determination of his tenancy, on the ground that

the tenant is in arrears of rent for not less than four months,

and has  failed  to  pay  the  same to  the  landlord  within  one

month from the date of service of notice of demand upon him.

But  sub section  (4)  of  Section  20 protects  the  tenant  from

decree of eviction if he deposits entire arrears of rent with nine

percent interest and costs before date of first hearing in the

suit.

9. Sub-section (4) of Section 20 of the Act reads as under:-

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“(4) In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first hearing of  the  suit  the  tenant  unconditionally  pays  or tenders  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 costs 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:

Provided  that  nothing  in  this  sub-section,  shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any  residential  building  in  the  same  city, municipality, notified area or town area.

Explanation:- For the purpose of this sub-section-

(a)  the expression “first hearing” means the first date for any step or proceeding mentioned in the summons served on the defendant;

(b) the  expression  “cost  of  the  suit”  includes one-half of the amount of counsel’s fee taxable for a contested suit.”

10. From the record, it appears that initially suit was decreed

ex-parte  against  the defendants,  and they got  the same set

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aside  vide  order  dated  25.05.1984.  On  the  next  day  i.e.

26.05.1984,  on  behalf  of  the  defendants,  a  tender  was

submitted for depositing Rs. 20,000/- in favour of the landlord

towards arrears of rent, 9% interest and costs of the suit. It is

also apparent from the record that after the tender was passed

by the Court, the amount was deposited on 28.05.1984. It is

not disputed by the learned counsel for the appellant that the

amount deposited was sufficient to cover what was required to

be deposited under the sub-section quoted above. As to the

date of first hearing, also no argument is advanced before us

as such there is no scope of interference with the conclusion of

the High Court on that point.

11. What  is  vehemently  argued before  us on behalf  of  the

landlord is  that  in view of  the  proviso to  sub-section (4)  of

Section 20, since the defendants have acquired as many as

four houses within municipal limits of the city, as such, they

are not entitled to protection provided under the sub-section.

On the other hand, on behalf of the tenants, it is contended

that the proviso to sub-section (4) deprives a tenant only if he

has built or otherwise acquired a residential house in a vacant

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state in the city and in this connection it is further submitted

that properties acquired by the tenants are commercial.

12. From  the  language  of  sub-section  quoted  above,  it  is

clear that under the proviso it is provided that nothing in the

sub-section could  apply  in relation to  a tenant  who or  any

member of whose family has built or has otherwise acquired in

a  vacant  state,  or  has  got  vacated  after  acquisition,  any

residential building in the same city. Learned counsel for the

tenant/respondent did not dispute that the respondent  has

acquired property Nos. 621, 42, 43 and 72 in the municipal

limits of Mowana (District Meerut). What the High Court has

held is that the proviso deprives the tenant of the protection

under  sub-section  (4)  only  if  he  has  acquired  residential

building.   On  carefully  going  through  the  record,  we  are

unable  to  agree  with  the  High  Court  that  none  of  the

properties  acquired by  the  tenant  are  residential.  From the

evidence on record, it is clear that only property no. 621 and

property no. 42 are shops. The record reveals that property no.

43 consists of two rooms, one hall on the ground floor, and

one room with  Sehan on the  first  floor  and property  no.72

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consists  of  five rooms. There is  no specific  finding that  the

nature of these two buildings is exclusively commercial. In our

opinion,  High Court  has erred in law by treating these two

properties as commercial without there being evidence to that

effect. A building which can be used for residential as well as

commercial purposes cannot be said to be excluded from the

clutches of proviso to sub-section (4), if built, or acquired in

vacant state within limits of the municipal area in which the

house from which eviction is sought by the landlord. Needless

to say in the present case building in question was let out for

residential-cum-commercial purposes.

13. It cannot be said that  object of sub-section (4) of Section

20 is to protect those tenants who have built, or acquired in

vacant state a house which can be used for residential as well

as commercial purposes. If word “residential” mentioned in the

proviso is  taken to mean what has been interpreted by the

High Court, the object of the proviso would get defeated. As

such,  in  our  opinion,  the  High  Court  has  erred  in  law  in

reversing the judgment and decree passed by the Judge Small

Cause Court.

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14. For  the  reasons as discussed above,  we are unable  to

uphold  the  impugned  order  passed  by  the  High  Court.

Therefore, the appeal is allowed and impugned order passed

by the High Court in revision is set aside. The decree passed

by  the  Judge  Small  Causes  Court/Xth  Additional  District

Judge,  Meerut  in  SCC Suit  No.  5  of  1983 is  restored.  The

defendants are directed to vacate premises in question within

a period of sixty days from today. No order as to costs.

……………….....…………J. [Dipak Misra]

     .……………….……………J.         [Prafulla C. Pant]

New Delhi; September 28, 2015.