JUDGMENT J.C. Gupta, J.
1. This is landlord's petition arising out of the judgment and order dated 31.7.1992 passed by respondent No. 1 in the revision filed against the Judgment and decree dated 12.8.1988 passed by Additional J.S.C.C., Kanpur. The revisional court has allowed the revision and dismissed the plaintiff's suit for ejectment.
2. A suit for recovery of arrears of rent, damages and ejectment was filed by the petitioner against Sri A. K. Gaur, the tenant, alleging therein that the defendant was tenant at the rate of Rs. 100 per month and he was in arrears of rent from 1.10.1965. The premises were post 1951 construction and hence U. P. Act No. III of 1947 did not apply. The tenancy was terminated by serving upon the tenant a notice under Section 106 of the Transfer of Property Act on 10.12.1986. During the pendency of the suit Sri A. K. Gaur died before the enforcement of U. P. Act No. XIII of 1972. His heirs wife and others, present respondent Nos. 3 to 5 were brought on record. The defence was that roof of the second floor was also included in the tenancy of the tenant and the rent was originally agreed at Rs. 60 per month and on the assurance of the plaintiff that he would allow the defendant to take water from the tap on the ground floor, the renl was enhanced to Rs. 100 per month. However, on 14.9.1966 the plaintiff fixed the door in staircase leading to the roof of the second floor and also curtailed the amenity of tenant to have water from the tap in the ground floor and thus the tenant was entitled to reduce the rent at the rate of Rs. 20 per month. The notice of ejectment sent by the petitioner was illegal and invalid. The benefit of Section 39 of the U. P, Act No. XIII of 1972 was also claimed. The trial court framed a number of issues and on examination of evidence it came to the conclusion that the house in suit was a post 1951 construction and U. P. Act No. III of 1947 was not applicable. While answering Issue Nos. 3 and 9 the trial court held that the suit did not relate to a portion of tenanted accommodation but to the entire tenanted accommodation and the roof was not Included in the tenancy of the tenant. In respect of Issue Nos. 4 and 10 the answer of trial court was that it could not be said that the plaintiff without any lawful authority had deprived the defendant of ihe amenity of taking water from the lap on the ground floor and on that ground rent could not be reduced or suspended as alleged by the defendant. Issue No. 5 was decided to the effect that the plaintiff was entitled to damages only at the rate of Rs. 100 per month and not at the rate of Rs. 5 per day. There was no proof that the defendant had made payment of house tax to the plaintiff and thus Issue Nos. 7 and 8 were decided in the negative. Similarly Issue Nos. 11 and 12 were also decided against the defendant.
3. The most important issues involved in the present petition were Issue Nos. 13 and 14 framed by the trial court which were in the following terms :
Issue No. 13 :
"Whether the defendant has deposited full amount with interest as provided under Section 39 of the U. P. Act No. X11I of 1972?"
Issue No. 14 :
"Whether the defendant is entitled to get benefit of Section 39 of the U. P. Act No. XI11 of 1972?"
While answering the above Issues, the trial court was of the opinion that since the tenant A. K. Gaur died on 15.1.1970 during the pendency of the suit and as the tenancy had already been terminated much earlier, his personal rights as tenant also extinguished along with him on his death and. therefore, the defendants as legal representatives of deceased tenant were not entitled to claim the benefit of Section 39 as they were no more tenants. The trial court further came to the conclusion that the amount deposited under Section 39 of the Act was short and on this ground also the defendants were not entitled to the benefit of Section 39 of the Act.
4. The lower revisional court by the impugned judgment has, however, upset the decree of the trial court. The Sower revisional court has agreed with the finding of the trial court that the rate of rent of the premises remained Rs. 100 per month and not Rs. 80 as alleged by the defendants. However, on the question whether benefit of Section 39 of the Act could be given to the heirs of the original tenant, the lower revisional court has opined that the provisions of Section 39 were applicable and the benefit of that section could be claimed by the defendants as the legal representatives of the original tenant. In respect of the finding of trial court that the amount deposited by the defendants fell short from the amount required to be deposited under Section 39 of the Act. the revisional court has not specifically disagreed with the trial court but added that since the plaintiff had not given out the details of the amount required to be deposited, he could not be heard to say at a later stage that the amount deposited was short. With this finding the lower revisional court has dismissed the plaintiffs suit for ejectment.
5. Sri Ajit Kumar, learned counsel for the petitioner and Smt. Poonam Srivastava counsel appearing for the contesting respondents have been heard.
6. Learned counsel for the petitioner argued that when admittedly the provisions of U. P. Act No. III of 1947 were not applicable on account of the building being a post 1951 construction and as the contractual tenancy had been determined under Section 106 of the Transfer of Property' Act prior to the filing of the suit, therefore, on account of the death of the tenant A. K. Gaur during the pendency of the suit in the year 1970, much before the commencement of the new Act. the legal representatives of the deceased tenant were not entitled to claim the benefit of Section 39 of the Act because the contractual tenancy after determination by a notice of ejectment under Section 106 of the T. P. Act was not capable of being inherited in law by the defendants as heirs or as legal representatives of the deceased tenant and since benefit of Section 39 could be invoked only by a tenant and not by any other person, the defendants had no right to claim the benefit of Section 39 of the Act, therefore, the view taken by the revisional court to the contrary is manifestly erroneous in law. In support of his submission learned counsel for the petitioner placed reliance on the decision of the Apex Court in the case of Jagdish Chander Chatterjee and others v. Sri Kisium and another, (1972) 2 SCC 461. The facts of that case were that the plaintiff had filed suit against the original tenant B. N. Chatterji for ejectment on the ground that he required the house bona fide for the residence of himself and his family. The suit was contested by the tenant and was decreed from the Court of first instance. The appellate court, however, reversed the judgment of the trial court and allowed the appeal. Thereupon the landlord filed second appeal in the Rajasthan High Court. During the pendency of appeal, the tenant died and his widow and children were brought on record as heirs and legal representatives, The widow also died during the pendency of appeal. When appeal came up for hearing, it was urged on behalf of the landlord that the deceased after the determination of tenancy was only a statutory tenant under the Rajasthan Rent Control Act and therefore, the protection granted by Section 13 of the said Act was not available to the heirs of the deceased tenant. The Rajasthan High Court set aside the order of the District Judge and restored the decree passed by the Munsif. In the appeal, the Supreme Court came to the conclusion that the position was that the contractual tenancy of the tenant B. N. Chatterjee had been duly terminated by notice and the tenant would be merely a statutory tenant liable to be evicted only in accordance with the special law. namely, Rajasthan Rent Control Act. The original tenant who was merely a statutory tenant died during the pendency of second appeal and his legal heirs were brought on record. In the premises of these facts, it was held by the Supreme Court that after the termination of contractual tenancy the statutory tenant has only a personal right to continue tn possession till evicted in accordance with the provisions of the Act. Reliance was placed on an earlier decision of the Supreme Court in the case of Anand Nivas (P.) Ltd. u. Anandji Kalyanji Pedhi and others, (1964) 4 SCR 892, wherein it was pointed out at page 908 :
"A person remaining in occupation of the premises let to him after the determination of or expiry of the period of the tenancy is commonly though in law not accurately, called a "statutory tenant". Such a person is not a tenant at all, he has no estate or interest in the premises occupied by him. He has njerely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His right to remain in possession after the determination of the contractual tenancy is personal ; it is not capable of being transferred or assigned, and devolves on his death only in the manner provided by the statute."
7. The Supreme Court in the case of J. C. Chatterjee (supra) held that when the original tenant died, he was only a statutory tenant--with the personal right to remain in possession till evicted in accordance with the provisions of the Act and his heirs were incapable of inheriting any estate or interest in the original tenancy. However, where the original tenant had died before the contractual tenancy had been terminated then the heirs would have inherited the tenancy and in that sense the rent would have become payable by them.
8. Sri Ajit Kumar further placed reliance on the decision of a single Judge of this Court rendered in the case of Sml, Ram Piari and others v. Narendra Kumar. 1976 ALJ 754. In this decision it was held that after the determination of contractual tenancy by means of a valid notice under Section 106 of the T.P. Act, the tenant became a statutory tenant and his right to remain in possession was entirely personal and was not capable of being transferred or assigned and could devolve on his death only in the manner provided by statute which gave him the protection from eviction. There was no provision at all in the U. P. Act No. III of 1947 for devolution of such a right on heirs to remain in possession.
9. On the other hand, Smt. Poonam Srivastava. counsel for the respondent argued that with the advent of the new Act (U. P. Act No. XIII of 1972) on 15,7.1972, the aforesaid proposition of law would not be applicable because the legal representatives of the deceased Sri A. K. Gaur became tenants within the definition of 'tenant' as provided in Section 3 fa) of the Act No. X11I of 1972 and, therefore, the protection guaranteed under Section 39 of the Act was available to them.
10. Sri Ajit Kumar further argued that in any view of the matter since the deposit made by the legal representatives of the deceased purporting to be under Section 39 of the Act was neither valid nor sufficient and the deposit so made was too short, therefore, benefit of Section 39 could not legally be extended to the defendants.
11. It is, therefore, necessary first to examine whether the deposits made from time to time by the respondents were in accordance with the provisions of Section 39 and whether the total amount deposited fell short of the amount required to be deposited under the said provision. If this question is decided in favour of the petitioner, the first contention raised by Sri Ajit Kumar will become academic only.
12. In order to appreciate whether compliance or Section 39 was made by the respondents in the present case, it may be relevant to look into the said provision. Section 39 runs as under :
"In any suit for eviction of a tenant from any building to which the old Act did not apply, pending on the date of commencement of this Act, where the tenant within one month from such date of commencement or from the date of his knowledge of the pendency of the suit, whichever be later, deposits in the Court before which the suit is pending, the entire amount of rent and damages for use and occupation (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 full costs of the suit, no decree for eviction shall be passed except on any of the grounds mentioned in the proviso to sub-section (1) or in clauses (b) to (g) of sub-section (2) of Section 20, and the parties shall be entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary :
Provided that a tenant the rent payable by whom does not exceed twenty five rupees per month need not deposit any interest as aforesaid."
13. A plain reading of the aforesaid provision makes it clear that the Court is precluded from passing a decree of eviction except on any of the grounds mentioned in the proviso to sub-section (1) or clauses (b) to (g) of sub-section (2) of Section 20, if the following requirements are satisfied :
(i) that the building in question is one to which the old Act (U. P. Act No. III of 1947) did not apply ;
(ii) that the suit for eviction was pending on the dale of commencement of the new Act (U. P. Act No. XIII of 1972), i.e., 15th July, 1972 ;
(iii) that the tenant has deposited in Court (a) the entire amount of rent and the damages for the use and occupation of the building, (b) interest on the said amount of 9% per annum and (c) the landlord's full cost of the suit ; and
(iv) that such deposit has been made within one month from the date of commencement of the Act or from the date of knowledge of the pendency of the eviction suit whichever is later.
It is further provided that the benefit of Section 39 can be extended mutalis mutandis to an appeal or revision arising out of eviction suit to which the old Act did not apply provided the said appeal or revision was pending in any Court on the date of the commencement of the Act.
14. Sub-section (2) of Section 20 enumerates the grounds in clauses (a) to tgj on which eviction suit can be founded against a tenant. Clause (a) provides that a suit for eviction can be instituted if the tenant is in arrears of rent for not less than four months and has failed to pay the same within one month from the date of service of notice of demand upon him. Grounds mentioned in clauses (b) to (g) are other than the arrears of rent. Therefore, if a suit has been-brought on the basis of the grounds enumerated from clauses (b) to (g) of sub-section (2) of Section 20, in such a situation Section 39 shall have no application. The legislature desired to grant protection from eviction to the tenant under the provisions of Section 39 only in the suits where eviction has been sought on the sole ground of default in payment of arrears of rent and that is why in the exemption clause contained in Section 39, clause (a) of the said subsection has been deliberately and intentionally excluded and an embargo has been created against the passing of an eviction decree. The embargo will come into play only if the tenant makes full compliance of the conditions laid down in the said section, that is. If he deposits in Court within the time allowed under the statute the entire arrears of rent and damages for use and occupation together with interest thereon at the rate of 9% per annum and the landlord's costs of the suit.
15. In the present case, there is no dispute that the instant suit was pending in the Court on 15th July. 1972 when the U. P. Act No. XIII of 1972 came into force. It is also not in dispute that eviction decree by the petitioner was sought on the ground enumerated in clause (a) of Section 20 (2) of the Act. Therefore, the only question which requires reconsideration is whether the respondents had deposited the amount which was required to be deposited under the terms of the provisions of Section 39 of the Act?
16. As per the findings recorded by the Court below, the rate of rent was Rs. 100 per month and not Rs. 80 per month as alleged by the respondents. The rent and damages were due from 1.10.1965. According to the submission of Sri Ajit Kumar. learned counsel for the petitioner the amount which was required to be deposited in Court under Section 39 of the Act was Rs. 11, 538 as per the following details :
(a) Total amount of rent and damages at the ate of Rs. 100 per month from 1.10.1965 to 15.8.1972 (total 82 months) = Rs.
8,250.00
(b) Interest at the rate of 9% per annum as per the following formula 81 x 82 x 1/2 = 3,321 3321 x 0.75 (monthwise interest) =Rs.
2.490.75
(c) Costs of suit =Rs.
372.75
(d) Other expenses, ie.
counsel's fee, etc. =Rs.
424,59 Rs.
11,538.09 The deposits made by the respondents from time to time were as follows:
(a) Between 29.4.1967 and 13.7.1972 at the rate of Rs. 80 per month = Rs.
5,520.00
(b) 4.8.1972 (Rs. 1.400 difference at the rate of Rs. 20 per month = Rs.
2.197.34
(c) Cost of suit = Rs.
424.59
(d) Interest = Rs.
372.75 Rs.
8.514.68
17. Thus, according to the petitioner's counsel, there was a shortage of Rs. 3.023.41P which was required to be deposited on 15.8.1972. Sri Ajit Kumar further argued that the amount which was deposited in Court on different dates prior to the commencement of the Act amounting to Rs. 5,520 was made at the rate of Rs. 80 per month and that too with a gap of few months as first deposit was made on 29.4.67 in respect of amount for the period from 1.10.1966 to 31.3.1967. Another deposit was made on 6.10.1967 covering the rent for the period from 1.4.1967 to 30.9.1967 and third deposit was made on 25.4.1968 in respect of period from 1.10.1967 to 31.3.1968. the plaintiff was entitled to interest on the rent which was not deposited in time when the same became due.
18. On the other hand, Smt. Poonam Srivastava, counsel for the respondents relying upon the decisions of Trilok Chand v. IInd Additional District Judge, Jhansi and others. 1980 ARC 308 and Bhopal Singh and others v. 1st Additional District Judge, M. Nagar and others, 1981 ARC 624. argued that while making compliance of Section 39 of the Act, the tenant was required to deposit interest only in respect of such rent and mesne profit which were in arrears and due from the tenant on the date of the commencement of the Act and since in the present case, the tenant had already deposited a sum of Rs. 5,520 as rent and damages on different dates at the rate of Rs. 80 per month before the enforcement of the Act, the tenant was not liable to pay interest on the amount already deposited in Court before the new Act came into force. In the aforesaid decisions, Hon'ble N. D. Ojha, J. as a Judge of this Court as His Lordship then was, placing reliance on a Division Bench case of this Court in K. D. Ram Nath and Co. v. Girdhari Lal, 1975 ALJ 1, held that Section 39 contemplates deposit of only such amount which has not already been paid to the landlord or deposited in Court either in pursuance of some statutory provision entitling the tenant to make such deposit or in pursuance of an order of the Court. From the aforesaid decisions, it is thus obvious that the tenant is required to deposit interest only on such amount of rent and damages which were due on the date of commencement of the Act and not on the amount which already stood deposited either in pursuance of some statutory provision or by an order of the Court. In the case of Trilok Chand, (supra), the plaintiff had submitted a tender for making a deposit of rent and damages and the Court accorded him permission to deposit the same and thereafter the deposit was made in pursuance of the order of the Court. Nothing was brought to the notice of the Court which could indicate that the tenant had placed any impediment in the amount deposited by him to be withdrawn by the plaintiff after he wanted to withdraw the same. In the present case, the defendants tenant had deposited the aforesaid amount of Rs. 5.520 on different dates, one deposit was made on 29.4.1967 in respect of the rent for the period beginning from 1.10.1966 to 31.3.1967. Another deposit was made on 6,10.1967 covering the rent for the period from 1.4.1967 to 30.9.1967 and third deposit was made on 25.4.1968 in respect of the rent from 1.10.1967 to 31.3.1968. It is, therefore, clear that rent was not deposited as and when the same became due as for example rent from 1.10.1966 to 31.3.1967 was deposited in Court as late as on 29.4.1967. Admittedly no interest on rent which became due for the period from 1,10.1966 to 31.3.1967 was deposited when the amount of rent was deposited on 29.4.67 nor at the time when deposit under Section 39 of the Act was made on 4.8.1972. It is significant to note here that the tenant in the present case had objected to the withdrawal of the amount by the plaintiil and accordingly payment was not made to the plaintiff petitioner despite his having moved an application to that effect. The lower revisional court has wrongly observed that the defendants tenant never objected to the withdrawal by the plaintiff of the amount which was deposited by the tenant in Court prior to the date of the commencement of the Act. It may be noted here that the plaintiff had moved an application, a copy whereof is annexed as Annexure-2 to the writ petition before the trial court to modify the order dated 25.5.1968 whereby the Court had restricted the payment of amount deposited by the tenant to the landlord and to this application moved by the petitioner landlord, the defendant tenant filed objection whose copy has been annexed as Annexure-3 to the writ petition wherein the tenant stated that the amount should not be paid to the plaintiff. The revisional court has thus overlooked the aforesaid documents and on a misreading of the material on record observed that the withdrawal of the amount by the plaintiff was never objected by the defendant tenant. In such a situation, in my opinion, the tenant was not relieved of atleast depositing interest on the amount which was admittedly deposited after the dates when the rent had become due. The amount so deposited by the defendants tenant was not unconditional and on the application of the tenant, the Court had precluded the plaintiff to withdraw the said amount. In any view of the matter, it was also clear that the defendants had deposited rent from 1.9.66 only instead from 1.10.65 and interest have also not been paid or deposited. Interest must be calculated not at the flat rate but at the rate of 9% per annum on the amount falling due at the end of each month. It would thus be seen that the amount which was required to be deposited under Section 39 of the Act fall short by a huge margin and not a small one. which could be considered as trifle. Since Section 39 has been enacted for the benefit of the tenant and is mandatory in nature, compliance of the conditions laid therein is to be made by the tenant and the landlord is not under any legal obligation or duty to tell the tenant as to what would be the correct amount which he is bound to deposit under the said provision. Even after taking into consideration the amount which had been deposited in Court and which was not allowed to be withdrawn by the plaintiff, along with the deposit made on 4.8.72 after the Act came into force, the amount deposited still fell short from the amount required to be deposited under Section 39 of the Act.
19. A single Judge of this Court in Ram Prasad v. Ganga Prasad and others, 1983 ARC 155, held that Section 39 of the Act is mandatory in nature. It confers a right upon a tenant to save his tenancy under certain circumstances. Where all the conditions laid down in Section 39 of the Act are fulfilled, the provisions of the said section come into play and the tenant is saved from eviction. In that case, the tenant admittedly had not deposited any amount in respect of the landlord's full costs of the suit when he made initial deposit in 1972. Effort was made by him to deposit a sum of Rs. 32.50 as counsel's fee on the 1st May. 1975 which was allowed to be deposited subject to the legal pleas. The plea of the tenant was not accepted and the learned Judge held that where a tenant fails to comply with any of the requirements of the Section 39 of the Act. It cannot be termed to be a trifling mailer. Since there was non-compliance with the requirement of Section 39 of the Act (in that case full cost of the suit were not deposited), the benefit of Section 39 was not extended. It was further held that the question of bona fide will arise if there is substantial compliance with the requirement of law and since Section 39 of the Act is mandatory in nature, the question of substantial compliance does not enter in the zone of consideration at all.
20. A Division Bench of this Court in the case of Amar Nath Agarwal v. 1st Additional District Judge. 1982 (1) ARC 734, also rejected the argument of substantial compliance. While making reference to the case of a single Judge in D. C. Gupta v. K. N. Seth, 1976 ALJ 124. the Division Bench held as under :
"But we are unable to subscribe to the opinion expressed by him in the aforesaid case that where a tenant has made the deposit in substantial compliance with Section 39. he will become enlilled to get its benefit. We have found above that the question of substantial compliance is completely ruled out, that no tenant can get the benefit of Section 39 on that basis."
21. Learned counsel for the respondents also pressed into service the maxim "de minirnis non curat lex" (the law does not concern itself about trifles). However, in the present case, the shortfall in the amount required to be deposited was not a small sum, which could qualify the requirement of getting the benefit of the above rule.
22. From the above discussion, it would appear that in the present case the tenant failed to make compliance of Section 39 of the Act inasmuch as he had not deposited the amount which was required to be deposited under the said provision and. therefore, he could not be saved from the decree of eviction. The lower revisional court thus, in my opinion, has exceeded its power in reversing the findings of fact recorded by the trial court and in substituting its own findings on Issue Nos. 13 and 14 which are quoted in the earlier part of this judgment, therefore. the impugned judgment of the revisional court cannot be sustained.
23. Smt. Poonam Srivastava, learned counsel for the respondents further argued that no decree of eviction could be passed against the tenants as on account of the deposit made by them in Court, they were entitled to the protection of Section 114 of the Transfer of Property Act. It may be suffice to mention here that it had never been pleaded either by the original tenant or the substituted heirs in the Courts below that they were entitled to claim the benefit under the aforesaid provision. In any view of the matter. Section 114 of the 'T. P. Act has no application to the facts of the present case as it was not a case of forfeiture of tenancy for non-payment of rent. The tenancy was terminated under Section 106 of the T. P. Act simpliciter. For the applicability of Section 114. existence of an agreement containing a stipulation empowering the landlord to re-enter in the demised premises in case of breach of a condition regarding payment of rent is essential. In the present case, there was no such agreement and as U, P. Act No. III of 1947 was not applicable to the premises, there was simpliciter termination of tenahcy under Section 106 of the T. P. Act by serving a notice thereunder. The mere fact that the notice stated about non-payment of rent also besides termination of monthly tenancy and demand of vacant possession, it would not be a case of forfeiture under clause (g) but one of determination of tenancy by exercising power under clause (h) of Section 111 of the T. P. Act. No authority is required for the proposition that where there is simpliciter termination of tenancy under Section 106 of the T. P. Act and not under Section 111(g) of the T. P. Act, then provision of Section 114 of the T. P. Act cannot be attracted. This argument of respondents' counsel also does not appeal to the Court and has to be rejected,
24. For the reasons stated above, this writ petition succeeds and is hereby allowed. The judgment of the lower revislonal court dated 31.7.1982 passed in Civil Revision No, 128 of 1980 is set aside and that of the trial court dated 12.8.80 decreeing the plaintiffs suit for ejectment and rent is restored.
25. In the circumstances, the parties shall bear, their own costs.