REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.5903 OF 2012

Smt. Sudama Devi & Ors.        ….Appellant(s)

VERSUS

Vijay Nath Gupta & Anr.           …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1. This appeal is filed by the legal representatives

of the defendant(tenant) against the final judgment

and  order  dated  14.03.2011  passed  by  the  High

Court of Judicature at Allahabad  in Civil Misc.Writ

Petition No.17758 of 1998 whereby the High Court

dismissed the  petition  filed  by  the  defendant  and

upheld the order dated 22.04.1998 passed by the

Additional  District  Judge-XI,  Gorakhpur  in  Civil

Revision No.15 of 1997  by which he dismissed the

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revision filed by the  defendant  and confirmed the

order dated 02.08.1997 passed by the Small Causes

Court in Small Cause Case No.42 of 1986.   

2. In order to appreciate the issue involved in the

appeal,  few  relevant  facts  need  to  be  mentioned

infra.

3. The appellants are the legal representatives of

original defendant - Chandrabhan Singh - who died

during the pendency of  the civil  suit  whereas the

respondents are legal representatives of Parasnath

Gupta, Manager of the plaintiff-Shri Ramchander Ji,

owner of the suit house.

4. The plaintiff claiming to be the landlord of the

suit  house  filed  a  civil  suit  through  his  Manager

against  the  defendant-Chandrabhan Singh for  his

eviction from the suit house. The plaintiff, inter alia,

alleged that  Chandrabhan Singh was his monthly

tenant living in the suit house. It was alleged that

the defendant has all along been in arrears of rent

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inasmuch as he failed to pay the monthly rent from

January 1977 onwards to the plaintiff.

5.  It was further alleged that the defendant paid

a  sum  of  Rs.656.25  to  the  plaintiff,  which  the

plaintiff adjusted against part of the arrears up to

May  1980.  It  was  alleged  that  despite  the

adjustment being made, the arrears still remained

unpaid  and  default  in  payment  of  monthly  rent

continued to persist  and hence notice for eviction

and  demand  of  arrears  of  rent  was  given  by  the

plaintiff  to  the defendant  followed by filing of  the

civil  suit  claiming  a  decree  for  eviction  of  the

defendant from the suit house and arrears of rent

against the defendant. The plaintiff sought a decree

for the defendant's eviction from the suit house on

the  ground  of  non-payment  of  arrears  of  rent  as

specified under Section 20(2)(a) of the Uttar Pradesh

Urban  Buildings  (Regulation  of  Letting,  Rent  and

Eviction) Act, 1972 (hereinafter referred to as “the

Act”).   

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6. The defendant denied the averments made in

the  plaint  and joined  issues.  One  of  the  grounds

raised by the defendant was that the provisions of

the Act do not apply to the suit house because the

suit house is the property of the Charitable Trust.

7. Issues  were  framed.  Parties  adduced  their

evidence.  The  Trial  Court  by  its  judgment/order

dated 02.08.1997 passed the decree for eviction and

arrears  of  rent.   It  was  held  that  the  suit  is

maintainable,  that  the  provisions  of  the  Act  are

applicable,  that  the  defendant  was  a  defaulter  in

payment of monthly rent and its arrears, and that a

ground under Section 20(2)(a) of the Act is made out

against the defendant for his eviction from the suit

house.  Accordingly,  the  decree  for  defendant’s

eviction from the suit house was passed.

8. The defendant  felt  aggrieved and filed a civil

revision  before  the  Additional  District  Judge,

Gorakhpur.  By  order  dated  22.04.1998,  the

Additional District Judge dismissed the revision and

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confirmed  the  judgment  and  decree  of  the  Trial

Court.  

9. It  may be mentioned here  that  one question

was also raised by the parties in the case, namely,

whether any case under Section 20(4) read with its

proviso was made out by the parties or not?  

10.  It was the case of the plaintiff (landlord) that

the defendant is not entitled to take any benefit of

Section  20(4)  of  the  Act  to  avoid  the  decree  of

eviction passed against him under Section 20(2)(a)

of the Act because his son, who is a member of the

tenant’s family, as defined under Section 3(g) of the

Act, has built his own house in the same city and

hence the defendant’s case would fall under proviso

to  Section  20(4)  of  the  Act  which  would  make

Section  20(4)  inapplicable  to  the  tenant.   The

defendant opposed this contention on facts stating

that  his  son lives separately from him and hence

proviso  will  not  apply.   The  contention  of  the

plaintiff was upheld by the Revisional Court (ADJ)

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and accordingly  the  eviction  decree  passed  under

Section 20(2)(a) of the Act against the defendant was

confirmed by denying the defendant the benefit of

Section 20(4) of the Act.

11. The  defendant  felt  aggrieved  and  filed  writ

petition  under  Article  227  of  the  Constitution  of

India before the High Court.  By impugned order,

the Single Judge of  the High Court dismissed the

writ petition and upheld the order of the Revisional

Court (ADJ) and also affirmed all the findings of fact

recorded by the Trial Court, giving rise to filing of

this  appeal  by  the  defendant  (tenant)  by  way  of

special leave in this Court.

12.  Heard  Mr.  Nagendra  Rai,  learned  senior

counsel for the appellants and Mr. Bhuvan Mishra,

learned counsel for the respondents.

13. Learned senior counsel for the appellants while

assailing  the  legality  and  correctness  of  the

impugned order argued only one point.  

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14. Learned counsel, by referring to Sections 20(2)

(a)  and  20(4)  of  the  Act,  submitted  that  eviction

decree passed under Section 20(2)(a)  of  the Act is

always  subject  to  ensuring  compliance  of  Section

20(4) of the Act. Learned counsel contended that the

defendant/tenant  was  able  to  prove  that  he  is

entitled to claim benefit of Section 20(4) of the Act

whereas  the  plaintiff  has  failed  to  prove  that  the

defendant’s case fell under proviso to Section 20(4)

so as to deprive the defendant from taking benefit of

sub-Section (4) of Section 20 and avoid the decree

for eviction passed against him under Section 20(2)

(a) of the Act.

15.  Learned counsel further urged that since the

defendant/tenant did not construct his own house

though his son constructed the house in the same

city  but  since  his  son  was  living  separately  from

him, the proviso to Section 20(4) of the Act had no

application to the case. It was his submission that

the defendant was, therefore, entitled to claim the

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benefit of Section 20(4) of the Act and the eviction

decree passed against him under Section 20(2)(a)of

the Act is liable to be set aside.

16. In reply, learned counsel for the respondents

supported the impugned order and contended that

it does not call for any interference.

17. Having  heard  the  learned  counsel  for  the

parties and on perusal of the record of the case, we

find no merit in the appeal.  

18. Section 3(g), Section 20(2)(a) and Section 20(4)

of the Act which are relevant for this case read as

under :

“ Section 3(g)

“family” in relation to a landlord or tenant of a building, means, his or her-

(i) spouse;

(ii)  male lineal descendants  

(iii) such  parents,  grandparents  and any  unmarried  or  widowed  or divorced  or  judicially  separated daughter  or  daughter  of  a  male lineal  descendant,  as  may  have been normally residing with him or her, and includes, in relation to a  landlord,  any  female  having  a

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legal  right  of  residence  in  that building

Section 20(2)(a)

(a) 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 upon him of a notice of demand:

Provided  that  in  relation  to  a  tenant who is a member of the armed forces of the Union  and  in  whose  favour  the  Prescribed Authority  under  the  Indian  Soldiers (Litigation)  Act,  1925 (Act  No.  IV  of  1925), has  issued  a  certificate  that  he  is  serving under special conditions within the meaning of Section 3 of that Act or where he has died by  enemy  action  while  so  serving,  then  in relation to his heirs, the words “four months” in this clause shall be deemed to have been substituted by the words “one year”.

Section 20(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:

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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.”

19. Reading of Section 20(4) of the Act would go to

show that when a landlord files a suit against his

tenant  seeking  his  eviction  from  the  tenanted

premises  on  the  ground  of  arrears  of  rent  as

specified under Section 20(2)(a) of the Act, the Court

has a discretion to pass a decree for eviction against

the tenant, in case the Court finds that the tenant

has  ensured  compliance  of  the  requirements  of

Section 20(4) of the Act by depositing the rent, its

arrears  and  damages  together  with  interest  as

specified therein.  

20. In  other  words,  if  the  Court  finds  that  the

tenant  has  ensured  compliance  of  conditions

specified in sub-section (4) of Section 20 of the Act

at the first hearing of the suit filed by his landlord

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for  his  eviction  on  the  ground  of  arrears  of  rent

under Section 20(2) of the Act, it is the discretion of

the Court to either pass a decree for eviction against

the  tenant  or  relieve  him  from  the  rigor  of  the

eviction decree.  

21. The  proviso,  however,  provides  that

sub-section(4)  of  Section  20  of  the  Act  will  not

apply,  if it is proved that a tenant or any member of

his family, has either built or otherwise acquired the

house in  a vacant  state,  or  has got  vacated after

acquisition,  any  residential  building  in  the  same

city, municipality, notified area or town area.

22. In our opinion, in order to attract the proviso,

three facts need to be proved. First,  the  tenant  or

any  member  of  his  family,  as  specified  under

Section 3(g), has either built or otherwise acquired

any  residential  building;  Second,  such  residential

building is in a vacant state; and third, such vacant

residential  building  is  situated  in  the  same  city,

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municipality, notified area or town area where the

suit tenanted premises is situated.  

23. Once these three facts are proved, the proviso

would apply against the tenant disentitling him to

claim the benefit of sub-section (4) of Section 20 to

avoid  decree  for  his  eviction  passed  against  him

under Section 20(2)(a) of the Act.

24. The main reason behind enacting such proviso

is  that  the  tenant,  in  such circumstances,  would

not suffer any hardship, if he is asked to vacate the

tenanted  premises  pursuant  to  eviction  decree

passed against him on the ground of arrears of rent

under Section 20(2)(a) of the Act because he or any

member of his family has built house or acquired it

and got its vacant possession situated in the same

city.  Such tenant can, therefore, shift in the house

of member of the family.

25. The  submission  of  learned  counsel  for  the

defendant  (tenant)  was  that  in  cases  where  the

tenant's  son  is  living  separately  from  his

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father(tenant)  in his  own house then such tenant

cannot be made to suffer the eviction decree once he

complies with the requirements of sub-section(4) of

Section 20.  

26. In other words, the submission was that it is

only when any member of tenant's family is living

with the tenant in the tenanted premises and if he

owns any vacant  residential  building in the same

city,  the  tenant  can be  deprived of  the  benefit  of

sub-section(4) of Section 20 but not otherwise.  We

find no merit in this submission.

27. In our view, the language of proviso being plain

and simple leaving no ambiguity therein, we cannot

read  the  words  of  the  proviso,  the  way  learned

counsel for the appellant wants us to read therein to

accept his submission. In our view, if such was the

intention of the legislature, then the proviso would

have  been  worded  accordingly.  Such  is,  however,

not the case here.

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28.    In the light of the foregoing discussion, we

concur  with  the  reasoning  and  the  conclusion

arrived at by the Courts below and accordingly hold

that the tenant, having rightly suffered a decree for

eviction  on  the  ground  contained  under  Section

20(2)(a),  is  not  entitled  to  take  the  benefit  of

sub-section(4) of Section 20 because his case falls

under the proviso to sub-section(4) by virtue of the

fact that his son, who is member of family being a

male lineal descendants as specified under Section

3(g)(ii) of the Act,  has built his residential house in

the  same  city  and  he  is  in  its  possession.   The

tenant can, therefore, shift in the said house once

he is  asked to vacate  pursuant  to eviction decree

passed against him.  

29. The  appeal  thus  fails  and  is  accordingly

dismissed.  The  appellants  are,  however,  granted

three  months’  time  to  vacate  the  suit  house

provided they deposit the entire arrears of rent till

date, if they have not so far deposited or paid to the

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respondents and also to deposit three months’ rent

by way of damages for use and occupation within

two weeks from the date of order in the Court below.

Failure to make deposit and submit an undertaking

by the appellants to this Court within two weeks to

vacate the suit  premises within three months will

entitle  the  respondents  to  execute  the  decree

forthwith on the expiry of two weeks.   

                  ………...................................J.   [R. K. AGRAWAL]

                                    …...……..................................J.

        [ABHAY MANOHAR SAPRE]

New Delhi; April 17, 2018  

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