_ VINEET KUMAR | MANGAL SAIN" WADHERE
January, 5, 1984° — of, [A- P. SEN AND.R. B. Misi Wy
Uttar Pradesh Urban Buildings ‘(Regulation of Letting, Rent aud’. Eviction.)
« Act, 1972 ection 2—Interpretation of—Whether the premises which was not ten years otd'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 litiga-- tion so as ta.attract the benefit of $.39 ta the tentint-Cause of actian “subsequent events’ and “amendment” explained
" Section 2 2 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, [972 exempts from operation of the Act various kinds of buil- dings 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 thé 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 compleied © viz., (1) the date of which the completion thereof is reported to or otherwise re-
. corded by the focal authority having jurisdiction; (4) in the case of building subject
_ to assessment {hat 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 itis actually
‘occupied for the first time. ,
The respondent landlord filed a, suit for eviction aiid 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 iri 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 ihe bank advanced Ioan, that the building was assessed to house, and water tax on tst of October 1971 and as such the building was not covered by the U.P. Urban. ©
Buildings (Regulation of Letting, Rent atid Eviction) Act, 1972 and that the appellant
_ defaulted in the payment of rent despite notice dated 24th Maych 1977. The
_ appellant resisted the suit and coritended. 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. 4000 spent by him towards repairs etc _ was due from the Respondent landiord. . . .*
-. 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
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334 oe SUPREME COURT REPORTS. - [1984] 2 25.¢. R
_ building i in question 1 will be deemed to. have béen completed on Ist October 4971, - 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 mew rent: Act had no- application to the building in suit and-the appellant eannot 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 - about the amounts ‘of rent -and the allowed the appeal in Parte. .
| Allowing the appeal partially, the Court. , . “
HELD : 1A. 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- “Hy .
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] 2 258. c. Cc. 61; ; distinguished and held i in 1 applicable. :
- 4:3," 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.
[40 C-D}
Section 20 of the New Rent Act. provides a bar to a suit for eviction of @ tenant except on the specified grounds as provided in the section. Sub-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-fo the landlord or deposits in court the eritire arhount 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 Jandlord’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 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 thosé 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 n 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 acebunt events and developments subsequent to the institution of the proceeding provided the rules of fairness to both
- Sides are seruputlously obeyed Ba ASF) oC; . . .
VINEET KUMAR J. “MANGAL san (Mira, JD). = 335
" Pasupati Venkateswarlu, v. Motor and General Traders, [1975] 7 8.C. C. 770;
. : applied.
: 2:2. Normally amendment is not allowed, if it changes the cause of action. . But it is welt recognised that where’ the amendment does not constitute an addtion
_ of @ new cause’ of action, or raise & new case, ‘but.amounts to no more than adding | :
“to the. facts already on. record, the amendment would be allowed ever after the ~ statutory period’ of limitation. [341 Gj - "
| AK Gupta & ‘Sons v Damodar Valley Corporation ‘[1966] 1.S.CR. 79655 referred | to. , ad
| Civit Appears, Furisptcrion Civil Appeat | No. 10144 of 1983. -
Appeal by Special leave froin the J idgment and -Order dated the 20th July, 1983 of the Allahabad High Court in Civil Revisior "No. 437" of 1983, -
GL. Sanghi, k K.K. Jain, AD. Satger and’ Pramod Payal for the “Appellant. ' o
TD. Jain, Mrs. Kawai Kochar and SR. Yada for the Respondent. ,
The Judgment of the Court was delivered by
Misra, J. The present appeal by special Jeave 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 f from the premises 1 in suit, . ou
,
The respondent filed a suit for eviction and for arrears of rent ° and damages for use and occupation pendente 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 arid water tax on ~ Ist 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 SUPREME COURT REPORTS: [1984] 2S.C.R.
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 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. Tlie 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 J udge negatived the defence and
\e decreed the suit for eviction as also for recovery of arrears of rent . .
and damages for use und occupation. The learned Judge held ‘that the building was exempt from the operation of the new Rent Act on two grounds. The first ground 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 con- ' structed 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 dctual repayment of .each loan or advance,-including interest, whichever is shorter. -As the. last instalment of the loan was paid-in March 1981, instead of ten years thé 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 he 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
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VINEET KUMAR vy. MANGAL. SAIN. N (Misra, J.) 337
+ in ) any y detail or to express any cncluded opinion. about it for disposal of the present revision. The High Court, however, accepting the .
finding of the learnéd Additional District Judge that. the. building in question will be deemed to havé been completed on Ist 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 6: cannot get any protection, of tlie 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 appelfant to the landlord through a crossed cheque dated 16th August, 1976 which was received by the landlord on 15th September, 1976., 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 didnot Specify the period for which this payment by cheque was made. The Higli 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 gvithout | any - . basis.
_ Ia 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 atrears 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. Thestrial court was further directed to afford-opportunity to the parties to adduce .
further evidence i 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 - *gsupReMe COURT REPORTS: 7 {1984] 2 s.c.r
The only point argued before this Court j is whether the premises ‘which was not ten yéars’ 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 contehtion of the parties it will be relevent at it this
- stage to refer to's. 2 of the new rent Act. Tt pertinently reads :
; ~ . oy “Exemption from operation ‘of Act. se nothing in this.
Act shall apply to—
(e) Leena Nae.
(F) : -any building built and held t by a society registered under
. the Societies” registration Act, 1860 (Act No. LVI of © 1860) or by a co-dperative society, company or firm and
“ intended solely for its own occupation or for the oceupation of any of its officers or servants, whether on rent ©
. of free of rent, or as a guest house, by whatever name caled, for the. occupation of persons having dealings with it in the ordinary course of business. °
(2) Exeept as ‘provided | in sub- section (5) of Section . 12, sub-section. (1A-) of section 21; sub-section (2) of Section 24, Sections 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 com , pleted : Provided that where any building is constructed sub-
' Stantially out of funds obtained by way of loan or advance from the State Government or thé Life Insurance. Corporation of India ora bank or a'co-operative society or the Uttar Pradesh Avas Evam Vikas Parishad, and the period. of
‘fepayment of such loan or advance exceeds the aforesaid period of ten years then the reference in this sub-section to the period of ten years shall be ‘deemed to bea reference to the period of fifteen years or the period ending with the date of actuabrepayment of each loan or advance (including interest), . whichever i is shorter. .
’
>
VINEET KUMAR ¥. MANGAL SAIN (Misra, J). 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 6n which the completion thereof is reported to or otherwise recorded by the local
~ authority having jurisdiction and in. the case ofa buil- _ding 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 agsess-. _ment, 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 cither designed as separate units or are occupied separately by the landlord and ¢ one or more’ tenants or n by
. different tenants; 0 7 -
Explanation re esas Lee ueneee daa te wees
Explanation JI.—A building shall be. deemed to. be con: structed 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 tle Act provides various: kinds of buildings to which the. new Rent Act has no application. Sub-section (2) of 8.2”
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 com-"' pleted. . 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. i is reported . to or otherwise recorded by the local authority having .. Jurisdiction. .
(ii) In case of building subject to assessment, that date on” _ which. the fi rst assessment thereof comes. into effect.
.. (iii) Where the said dates are different, the earliest of the said, dates. , 4
BY
Rr
Hi
¢
. 340: a SUPREME COURT REPORTS [1984}-2 S.C.R.
. . e : (iv) Tn the absence of any such report, record or assessment - the date on which it 1S actually occupied for the first”. "time:
In the case in hand the‘building was subject to assessment there-
~ fore it will be deemed to have been completed on the date of assessment which was Ist. October, 197!.- 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 Heh Court. :
The moment a building becomes ten years old..to be reckoned from the date of completion, the new Rent Act wold become appli- cable. 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 completes ten years during the course of litigation. The Additional District’ Judge decided the case on 23rd ‘February 1982: By that time € the building i 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 dat? of occupation on {6th 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 .39 of the Act on the date when the revision came “to be decided’ by the High Colirt on 23rd Marsch, 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 cir" cumstances of the case and in that view of the matter the building had not becom? more than ten years old on the date when the revision came to be dezided by the. High Court and, therefore, there was no | ' question of giving the benefit of s.39 of the Act to the appellant .1t
-was not al all necessary in that case. to deal wth 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 when the revision’ petition
' was heard. In the instant case, however, the building had become moré thah ten years old during the pendency of the ligitation and, therefore, the question assumes importance in the present case, -
’ . ry nal.
VINEET KUMAR Y¥. MANGAL SAIN (Misra, J.) ~ 34]
.-
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 nét detain us aS it-is coveted by decision of this Court in- Pasupati
Venkateswarlu v. Motor and General Traders. “) Dealing with a similar’
question this Court observed :
. “tt is basic to our processual jurisprudence that the right to relief must be judged to exist as onthe 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 inipact 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 fairplay is not Violated, with a'view lo promote substantial © factors or just circumstances. “Nor can we contemplate any limitation .on this. power to take note of updated facts 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 rule 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 accord with the current realities. the Court can, and in many casés must, take cautious cong: nisance of events and developments subsequent to the institu-. tion of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. ?
~ Normally arnendment is not allowed if it changes the cause of * action, But it is well recognised that where the amepdment does not constitute an addition of a new cause of action, or raise a’ new - case; but amounts to no more than adding tothe facts already on the recerd the amendment, 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 inthe cause of action. In A.K. Gupta & Sons. v. Damoday
(1) [1975] 1 S.C.C. 770, eo - tes.
342 an SUPREME COURT REPORTS . 984 2S.C:R. A alley. Corporation"). this Court dealing with the caus 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 Gooks v.
Gill? ina 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.) and it seems ta us to be the only possible view to take, Any other view would make the rule: futile.”
The appellant i 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
D.. 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 déposits. in court the entire. amount of rent and
_E- 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 interést thereon at the rate of nine per cent per.
_ mnum 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 5.30, the court’ may, in lieu of ‘passing a decree .. ;
FC for eviction on that ground, pass a order relieving the tenant against: his liab‘iity 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 addi- , G tional evidence whete necessary.
For the feasons given above the appeal must succeed. It-is — accordingly allowed in part and the-judgment and ‘decree of the High. - soe (1) [1966] 1'S.C.R. 796. .. 0 7 H 2 (2) [1873] L R BC.P. 107, 117 . ) [1962] 2 All ER. 240 0: |
' VINEET KUMAR ¥. MANGAL SAIN (Misra, J.) 343 Court is set aside in so far as it relates to eviction but the judgment A 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 II 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
-§.39 of the new rent Act after first determining whethet any amount ° B is due from the appellant towards rent as directed by the High Court.
‘The costs here will abide the result. .
SR. _ Appeal allowed in part.
al
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