Case: Vineet Kumar Vs. Mangal Sain Wadhere

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. 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 t hat 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 installment 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 t he suit as prayedappellant 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 t he 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 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 tri al 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. 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 anythe 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 t o 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 thisappellant has now approached this Court with an application for special leave to appeal.

Reasoning: 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 landlords cost of the suit in respect thereof after deducting there fro m 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 an d 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 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 n ew 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 towards rent as directed by the High Court.