Rakesh Singh Chaudhary vs M/s Jai Narayan Prahlad Rai

SHARAD KUMAR SHARMA, J.

The controversy in the present revision was arising out of a challenge given by the landlord to the judgment dated 26.11.2014, as rendered by Judge,

SCC/ Additional District & Sessions Judge, Kotdwar, District Pauri Garhwal, whereby the SCC Suit No. 4/2010 ‘Rakesh Singh Chaudhary Vs. M/s

Jaynarayan Prahalad Rai’ seeking eviction and arrears of rent as against respondent tenant had been dismissed.

After the exchange of the pleadings and after prolonged arguments extended by the learned counsel for the review applicant and the revisionist, the

revision was decided by this Court by its judgment dated 13.11.2017, whereby while reversing the finding pertaining to the reasoning assigned to the

interpretation of sub-Section 4 of Section 20 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter

referred to as “the Actâ€), the revision was allowed and as a consequence thereto, the tenant was directed to vacate the premises within a period

of six months from the date of the judgment.

While deciding the issue, this Court has dealt with the interpretation of the language used under sub-Section 4 of Section 20 of the Act, wherein the

legislature has independently contemplated the remittance of the entire amount of ‘rent and damages’, and it was held that the rent as

mentioned under sub-Section 4 of Section 20 of the Act has to be independently read then to the damages as these are the two independent amounts

payable by the tenant as a consequence of termination of tenancy by virtue of a notice under Section 106 of the Transfer of Property Act. The

rationale behind treating the two terms to be distinct is that the rent is a fixed liability, accrued on date of termination of tenancy settled between the

parties to be paid by the tenant to the landlord for the user of the property; whereas damages is variable, which depends upon the length of the

occupation or continuance of occupation after the termination of the tenancy. This would be independent as it would be recurring till date of actual

vacation of the premises. That is why the law makers has used the two terms in conjunction to one another and qualified by the word “andâ€, it

between it, which would mean rent and damages and two distinct covenants to be paid.

After the judgment having been rendered, the tenant had filed a Review Application being Application No. 1245 of 2017. The said review

application after being filed, this Court directed the revisionist to file his objection in response to the review application. The same was filed by the

revisionist. After the exchange of pleadings, the review application is being taken up today for disposal.

The argument of the learned counsel for the review applicant is that for the purposes of meeting the intention and purpose of Section 20(4) of the

Act No. 13 of 1972, an overall deposit has to be taken into consideration. What he intends to submit is that if the entire amount claimed in the notice

has been deposited unconditionally, in that eventuality, the total amount thus paid, in case if the amount falls short under any heads of payment which is

required to be met by the tenant can be adjusted over from the amounts from other heads which had been paid in excess. The second contention as

contended by the learned counsel for the review applicant was that for making the deposits under Section 20(4) of the Act, the nomenclature of the

heads is not relevant for deciding the controversies.

In support of his contention, learned counsel for the review applicant has placed reliance on the judgment as reported in (1984) 1 ARC 672 in the

case of Chokhey Lal Vs. The IInd Addl. District Judge, Rampur and others. He has referred to para 6 of the said judgment. The factual backdrop,

which was dealt with in the said case was though emanating from the proceedings under the Provincial Small Cause Courts Act, 1887 But, primarily it

was dealing with the issue as to what would be the effect if a tenant who makes a deposit under Section 20(4) of the Act of 13 of 1972, who does not

make an application for claiming the protection of the said provision. It was further dealing with the situation of an unconditional deposit contemplated

under the Act. In para 6 of the judgment on which the reliance has been placed, reads as under:-

“6. Sub-section (4) of Section 20 no where requires that in order to claim benefit of this provision, the tenant should besides making the deposit,

also make a formal application claiming the benefit. After making the deposit, the tenant can request the court to take it into consideration and relieve

him of liability for eviction. This is enough. Hence, the tenant could not be denied the benefit of sub-section (4) of Section 20 on the ground that no

formal application was made to claim the protection. The contrary view taken by the trial court was erroneous in law.â€​

The learned Single Judge of Hon’ble Allahabad High Court has only held that Section 20(4) of the Act no where provides that for getting

shelter to sub-Section (4) of Section 20 of the Act, any specific application is required to be made. Nothing else has been dealt with by the said

judgment, more particularly, the argument as extended by the review applicant was regards what would be effect of non deposit of damages. As such,

this judgment as relied by the learned counsel for the review applicant would be of no help for seeking review of the judgment as prayed for.

Another judgment on which reliance has been placed by the learned counsel for the review applicant is to para 10 of the judgment reported in 1982

ARC 555 in the case of Dr. Nilamber Jha Vs. 1st Addl. District, Judge, Gorakhpur and others. In the said judgment in para 10 on which the reliance

has been placed was dealing with a situation as to when the amount deposited under Section 20(4) of the Act if it falls due to be paid under one of the

heads of liability reflected in notice whether the excess amount paid under the other head could be adjusted towards the principal amount which is said

to have been defaulted. Para 10 of the said judgment laid that an amount deposited towards the other head can be adjusted.

“10. Coming to the second question the learned counsel for the respondent argued that that the amount deposited by the defendant on 20th July

1977 covered the dues upto 30th April 1977. The deposit, was made on 20th July under the circumstances the dues for the month of May and June

should also have been deposited. As there has been an excess deposit in respect of water-tax amounting to Rs. 483/- the amount of Rs. 140/- rent for

two months can be adjusted therefrom. The defendant had substantially and completely complied with the conditions of Section 20(4) of U.P. Act No.

XIII of 1972.

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Thus the suit of the plaintiff could not be decreed for ejectment of the defendant.â€​

This judgment too would not be of any help to the review applicant for the reason that it was dealing with a factual situation which was involved in

that particular case, which was decided by the said reported judgment, it was not laying down a ratio. Secondly, in the instant case, it is not a case

which is either pleaded before the Court below or before this Court that the benefit of Section 20(4) has been denied because of the fact that there

had been a shortage of payment against one of the heads of deposit which could have been adjusted against the other head where there is an excess

deposit made. Hence, neither this was a case involved nor it was a case argued or pleaded by review applicant nor it entails its consideration at a

review stage. The case at review stage is beyond the original case is also established from the fact that the issue Nos. 4 and 5, which dealt with

payments claimed under other heads has been decided on the ground that since tenancy has not been terminated, there is no issue involved as pressed

by issue nos. 4 and 5. But, still there is no such case pleaded by review applicant for adjustment of amount. Hence this argument too cannot be

considered for a review of the judgment.

Lastly, the learned counsel for the review applicant has placed reliance on a judgment reported in (2002) 3 SCC 49 in the case of Mam Chand Pal

Vs. Shanti Agarwal (Smt.). He has referred to para nos. 9 and 10 of the said judgment. This judgment too has placed reliance on the judgment of

Nihal Jha’s case which was dealing with regards to the settlement of the amount deposited in excess under the other heads which was required to

be adjusted against the shortfall. Hence, this judgment also is of no avail to the argument as extended by the learned counsel for the review applicant.

Under the law of review, it is not a scope which is available to the review applicant to have a de novo argument on an issue which has been

settled after hearing the parties at length. Apart from the above argument, no other argument has been extended by the learned counsel for the review

applicant. Thus, this Court finds that there is no apparent anomaly in the judgment sought to be reviewed. As such the Review Application (MCC No.

1245 of 2017) is rejected.

Subsequent to the delivery of the order on the review application filed by the respondent/tenant a prayer was made for seeking an extension of

time for vacating the premises than what was granted by the judgment sought to be reviewed. Owing to the fact that the review itself has been

decided today and the time period as granted earlier has already lapsed and hence with the consent of the parties the time for vacating the premises is

hereby extended for the further period of six months from today subject to the condition that the respondent gives an undertaking before the Judge,

Small Causes Court, Kotdwar, District Pauri Garhwal to the said effect positively

within a period of four weeks from today i.e. by 23rd August, 2018 and would undertake to vacate the premises and handover the vacant peaceful

possession by 24th February, 2019. During this period, the tenant would continue to remit the rent as settled between the parties and same to be paid

by 10th of each month, failing which the protection of vacating the premises after six months would automatically stand vacated.