Holding

The tenant is entitled to the benefit of Section 39 read with Section 40 of the U.P. Urban Buildings Act, 1972 and is absolved from liability for eviction despite non‑deposit of costs that were not payable on the deposit date.

Summary

The landlord obtained a decree for eviction of the tenant's shop, with the trial court ordering each party to bear its own costs. While the appeal was pending, the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 came into force, requiring a tenant to deposit the landlord's full costs of the suit within one month under sections 39 and 40 to be absolved from eviction. The tenant deposited the amount prescribed but omitted the suit costs, later depositing them after the deadline. The landlord argued that non‑deposit of costs barred the tenant from the benefit of the Act; the tenant contended that because the trial court had ordered each side to bear its own costs, the costs were not payable and therefore the non‑deposit could not defeat the benefit. The Supreme Court held that only taxable costs payable to the landlord need be deposited, and if such costs are not payable on the deposit date (e.g., due to a court order), the tenant is not deprived of the benefit of sections 39 and 40. The Court allowed the appeal, absolving the tenant from eviction and ordering the landlord to withdraw the deposited amounts, with each party bearing its own costs of the appeal.

Issues considered

Whether non‑deposit of the landlord's full costs of the suit within the period prescribed under Sec. 39/40 of the U.P. Urban Buildings Act, 1972 deprives the tenant of the benefit of the Act when the trial court ordered parties to bear their own costs.
What constitutes "full costs of the suit" under the Act – whether only taxable costs payable to the landlord are required.
Whether the deposit of costs can be condoned or required in supersession of a lower court order.

Legislation cited

Subjects

evictionlandlord-tenantdeposit of coststaxable costsUrban Buildings ActSection 39Section 40full costs of suitappellate courtcondonation

Judgment

BANARSI LAL
A
v.
SMT. SAGHIRAN BEGUM

MAY 3, 1988

B [R.S. PATHAK, CJ, M.H. KANIA AND N.D. OJHA, JJ.]

Urban Buildings (Regulations of Letting, Rent and Eviction) Act
1972-Sections 39 and 40-Tenant making deposit and claiming enti-
tlement to be absolved from liability for eviction-Amount deposited to
include costs of suit-Costs are taxable costs made payable by tenant to
landlord.
c
In a suit for ejectment filed by the landlord respondent a decree
for eviction from a shop was passed against the tenant-appellant on 19th
August, 1971. The Trial Court however directed the parties to bear
their own costs. During the pendency of the tenant's appeal, the U.P.
D Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972
was enforced with effect from 15th July, 1972. The appe!lant made the
deposit contemplated 'by section 39 read with section 40 of the Act
within one month in the lower appellate court and asserted that in view
of the deposit so made he was entitled to be absolved from his liability
for eviction. The deposit, however, did not include the costs of the suit.
E
The landlord contested the tenant's claim on the ground that since
the costs of the suit had not been deposited within time, the tenant was
not entitled to the benefit of section 39 read with section 40. In defence, •
the tenant urged that since the trial Court had directed the parties to
bear their own costs the benefit of the aforesaid sections could not be
F denied to him. In the alternative, it was asserted that. the delay in the
deposit of costs was liable to be condoned. These contentions did not find
favour with the lower appellate court and it dismissed the appeal with
costs. The tenant's second appeal was also dismissed by the High Court.
The High Court held that the costs of the suit had to be deposited
notwithstanding the fact that the trial court had directed the parties to
G bear their own costs. According to the High Court, the words 'land-
lord's full costs of the suit' were not the same thing as the costs awarded
to the plaintiff in a suit but really meant all those taxable costs which
were capable of being ascertained on the date of the deposit. In this
Court the appellant reiterated the pleas raised in the cou.rts below.

H Allowing the appeal, it was,
820
BANARSI LAL v. SAGHIRAN BEGUM 821

HELD: (I) Irrespective of the actual amount of costs that may A
have been incurred by the landlord in prosecuting a suit, he is entitled
to recover. from the tenant only such costs which in law are known as
taxable costs and are made payable to tbelandlord. [824E]

(2) Non-deposit of such costs which, either on account of the
relevant rules or some specific order of the court are not payable by the B
tenant to the landlord on the date of deposit contemplated by section 39
or 40, cannot deprive the tenant of the benefit of these two sections. The
fact that in appeal there was a possibility of costs of the suit also being
awarded to the landlord by reversing the decree of the trial court in this
behalf will not be material. [824H; 825AI
c
(3) In cases falling under this category, the appellate or revisional
court in order to safeguard the interests of the landlord and to give
effect to the intention of the legislature expressed in section 39 read
with section 40 of the Act, will require the tenant to deposit such costs
also in supersession of the decree or order of the subordinate court in
this behalf before passing an order giving him the benefit of these D·
sections. [825E]

(4) The appellant was entitled to the benefit of section 39 read
with Section 40 of the Act and to be absolved from his liability to be
evicted from the shop in question. [826G-H]
E
Krishna Kumar Gupta v. Additional District Judge IV, [19871 2
S.C.R. 638; R.D. Ram Nath & Co. v. Girdhari Lal, [1975] A.L.J. I
and Smt. Phoolwati v. Gyan Chand Verma, [1985] All L.J. 1, referred
to.

---C. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5858 F
of 1983. ·

From the Judgment" and Order dated 5.5.83 of the Allahabad
High Court of in S.A. No. 1281of74.

S.K. Bisaria, A.P. Malhotra, J.K. Nayyar and R.S. Sharma for G
the Appellant.

Shakil Ahmed Syed for the Respondent.

The Judgment of the Court was delivered by
H
822 SUPREME COURT REPORTS [1988] 3 S.C.R.

A OJHA, J. This is '1 tenant's appeal by special leave against the
judgment of the Allahabad High Court dismissing his second appeal
arising out of a suit for ejectment of the appellant filed by the landlord-
respondent in respect of a shop. One of the questions which came up
for consideration in the suit was as to whether the U.P. (Temporary
Control of Rent and Eviction) Act, 1947 (U.P. Act III of 1947) was or
B
was not applicable to the shop in question. The trial court held that the
said Act was not applicable. Other pleas raised in defence by the
appellant having failed, a decree for eviction and for recovery of
damages for use and occupation was passed against him on 19th
August, 1971. The trial court, however. directed the parties to bear
their own costs. Against that decree an appeal was preferred by the
c appellant. During the pendency of the appeal, the U.P. Urban Build-
ings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act
13 of 1972), hereinafter referred to as the Act, was enforced with
effect from 15th July, 1972. The appellant made deposit contemplated
by Section 39 read with Section 40 of the Act on 19th July, 1972, that
is, within one month from 15th July, 1972, which was the date of the
0
commencement of the Act, in the lower appellate court and asserted
that in view of the deposit so made he was entitled to be absolved from
his liability for eviction from the disputed shop. The amount so
deposited, however, did not include the costs of the suit. Subse-
quently, the appellant was permitted to deposit even the costs of the
suit by the lower appellate court but at his own risk.
E
In regard to the claim of the appellant that he was entitled to be
absolved from his liability for eviction on account of the deposit made
by him on 19th July, 1972, it was urged on behalf of the landlord-
respondent that since the costs of the suit had not been deposited and
the subsequent deposit thereof was beyond one month contemplated
F
by Section 39 of the Act, the appellant was not entitled to the benefit
of the said Section read with Section 40. For the appellant, on the
other hand, it was urged that since the trial court had directed the
parties to bear their own costs the benefit of the aforesaid Sections
could not be denied to him for non-deposit of the costs of the suit. In
G the alternative, it was asserted by him that since the costs even of the
suit were deposited subsequently the delay in the deposit was liable to
be condoned. However, neither the main plea nor the alternative plea
found favour with the lower appellate court and it dismissed·the appeal
with costs. It further passed a decree for the costs of the suit also in
favour of the landlord-respondent by allowing the cross-objection filed
H by her in this behalf.
BANARSI LAL v. SAGHIRAN BEGUM [OJHA, J.J 823
}--
Aggrieved by the decree passed by the lower appellate cilurt the A
appellant preferred a second appeal which was dismissed by the High.
Court by the judgment appealed against. The pleas which were raised
by the appellant before the lower appellate court and the High Court
in regard to the scope of Section 39 re·ad with Section 40 of the Act
have been reiterated before us by his learned counsel. In support of his
alternative submission that the delay in depositing the costs of the suit B
-:r deserved to be condoned, the learned counsel for the appellant placed
reliance on a decision of this Court in Krishna Kumar Gupta v. Addi.
District Judge IV and others, [19871 2 R.C.R. 638. On the facts of the
instant case, however, we do not find it necessary to go into the ques-

J tion as to whether the delay in making deposit contemplated by Sec-
tion 39 can be condoned or not because in our opinion the appeal c
deserves to be allowed on the main submission made by learned
counsel for the appellant, namely, that since the trial court had
directed the parties to bear their own costs as a result of which the
costs of the suit were not payable by the appellant on the date of the
deposit, the non-deposit of the said costs within one month from 15th
July, 1972 as contemplated by Section 39 of the Act could not deprive D
him of the benefit of the said Section. What was the true import of the
expression 'full costs' used in Section· 39 of the Act, came. up for
consideration before a Division Bench of the Allahabad High Court in
R.D. Ram Nath & Co. and anotherv. Girdhari Lal and another, [19751
~ A.L.J. Page 1. In so far as is relevant for the present case it was held:
E
"The expression 'full costs of the suit' in respect of a

- pending suit will represent the amount of court fee paid on
the plaint and on other documents and other taxable
expenses incurred by the landlord by the date of deposit
together with such amount of the Advocate's fee and the
·~
·' fee of his clerk as is taxable on the contested scale whether F
any certificate of fee has or has not been filed by the date of
deposit.

In case of a first appeal or revision filed against a
decree or order of the trial court it will represent the costs
awarded to the landlord in the ·decree or order together G
with the amount paid as court fee on the memorandum of
.A' appeal or· revision and other documents and other taxable
expenses incurred in the first appellate or revisional court
including the Advocate's fee and the fee of his clerk which
are to be computed in the manner stated above."
H
824 SUPREME COURT REPORTS [1988] 3 S.C.R.

This decision was cited before the learned Judge who decided the
~
A
appellant's second appeal with particular emphasis on the words 'the
costs awarded to the landlord in the decree or order' with regard to the
deposit to be made in case of a first appeal or revision filed against a
decree or order of the trial court. The learned Judge, however, took
the view that since an appeal was a continuation of the suit the
B aforesaid words appear to have been mentioned by the Bench rather
y
loosely. He also pointed out that in case the cross-objection filed by
the landlord was ultimately allowed the costs of the trial court would
become payable and in this view of the matter also the costs of the suit /
had to be deposited notwithstanding the fact that the trial court had

~
directed the parties to bear their own costs. According to the learned
Judge the words 'landlord's full costs of the suit' were not the same
c thing as the costs awarded to the plaintiff in a suit and that the word
'landlord' had been used in Section 39 purposely in order to distinguish
it from the plaintiff of the suit. He further took the view that 'land-
lord's full costs of the suit' in Section 39 really meant all those taxable
costs which were capable of being ascertained on the date of the
D deposit.

Having heard learned counsel for the parties we find it difficult
to agree with the view that the words 'the costs awarded to the land-
lord in the decree or order' were used loosely. Irrespective of the
actual amount of costs that may have been incurred by the landlord in
E prosecuting a suit he is entitled to recover from the tenant only such
costs which in law are known as taxable costs and are made payable by
'""'
the tenant to the landlord. The matter may be clarified by an illustra-
tion. Take a case where court fee in excess of what is prescribed has
been actually paid by the landlord. Notwithstanding such payment the
tenant, even on the suit being decreed with costs, will not be liable to
F pay the excess amount of court fee, inasmuch as law does not permit it _y
\
to be taxed. The same would be the position in regard to the fee paid
by the landlord to his counsel in excess of such fee as is taxable. For
this reason even though the word 'taxable' has not been prefixed to the
words 'costs of the suit' in Section 39 of the Act, the concept of taxable
costs has been introduced therein in the process of interpretation of
G the said Section. On principle, we do not find much difference in a case
where the costs incurred by the landlord have been made specifically
not payable by the tenant to the landlord by a decree or order of the A
court. In our opinion non-deposit of such costs which, either on
account of the relevant rules or some specific order of the court are not
payable by the tenant to the landlord on the date of deposit contem-
H plated by Section 39 or 40, as the case may be, cannot deprive the
I
BANARSI LAL v. SAGHIRAN BEGUM [OJHA, J.J 825
)--
tenant of the benefit of these two sections. The fact that in appeal A
there was a possibility of costs of the suit also being awarded to the
landlord by reversing the decree of the trial court in this behalf will, in
our opinion, not be material.

As regards the use of the word 'landlord' in· place of the word B
'1' 'plaintiff' in Section 39 of the Act suffice it to point out that since the
Act deals with landlords and tenants the word 'landlord' was used in
Section 39 also as it was used in various other sections. This circum-
stances, in our opinion, could not be used for holding that even if costs
are not payable to the landlord on the date of depo~ifbecause of some
specific order of the court it would still be payable.
c

' We would, however, like ·to empbasise that since Section 39
contemplates deposit of full costs of suit also, in cases falling under
this category, namely, where because of a decree or an order passed by
the court below depriving the landlord of his costs, the tenant is not
liable to pay the amount of costs on the date when the deposit contem- D
plated by Section 39 read with Section 40 of. the Act is made in an
appellate or revisional court, such court in order to safeguard the
interests of the landlord and to give effect to the intention of the
legislature expressed in Section 39 read with Section 40 of the Act will
>-· require the tenant to deposit such costs also in supersession of the
decree or order of the subordinate court in this behalf, if other condi- E
tions of these two sections have been complied with, before passing an
order giving him the benefit of these sections; namely, of absolving
him from his liability for eviction from the premises in question. Such a
course would meet the ends of justice and safeguard the interests of
both the parties. In doing so, in cases falling under the aforesaid cate-
---(_ gory, the court will neither be condoning any default nor.extending the F
time for depositing costs of the suit beyond the date contemplated by
Section 39, inasmuch as on that date such costs were not payable by
the tenant because of an order of court passed in this behalf. In the
instant case the costs of the suit had already been deposited by the
tenant and only an order permitting the landlord to withdraw the same
was needed. G

J.
The learned counsel for the landlord-respondent while support-
ing the judgment appealed against placed reliance on .a subsequent
decision by Division Bench of the Allahabad High. Court in Smt.
Phoolwati v. Gyan Chand Verma and another, 11985) ALL. L.J. Page H
826 SUPREME COURT REPORTS [1988] 3 S.C.R.

A 1. It was pointed out by him that the judgment under appeal in the
instant case on the point in question, has been approved in the case of
Smt. Phoolwati (supra). In our opinion, the decision in the case of
Smt. Phoolwali (supra) is distinguishable on facts. That was a case
where during the pendency of the suit the landlord had sought permis-
sion to file some papers but her application, made in this behalf, was
B
rejected by the trial court. Against that order the landlord preferred a
revision which was allowed with costs which amount, as quantified in
the formal order, came to Rs.132.10. The amount which was deposited
by the tenant in order to claim the benefit of Section 39 of the Act,
however, did not include this sum. It was urged on behalf of the tenant
that since the sum of Rs.132.10 represented costs awarded in a revision
c arising not out of the main decree but out of an interlocutory order it
was not necessary to be deposited. This plea was repelled and in doing
so reliance was indeed placed on the decision in the case of R. D. Ram
Nath & Co. (supra). Emphasis was placed on the words 'other taxable
expenses incurred' occurring in that part of the judgment in the case of
R.D. R_am Nath & Co. (supra) which has been extracted above.
D Anotiler circumstance which was relied on by the tenant in that case
was that even though the revision against the interlocutory order had
been dismissed with costs, the amount of Rs.132.10 even though
mentioned in the formal order was not included in the ultimate decree
which was passed in the suit. It is in this background that it was held
that the said amount of Rs.132.10 fell within the expression of 'land-
E lord's full costs of the suit' notwithstanding the fact that it was not
shown in the decree. It was thus a case where the sum of Rs.132.10 had
specifically been made payable by the tenant to the landlord in the
revision against the interlocutory order but for some reason was omit-
..•
ted to be included in the ultimate decree. It was not a case where the
costs of the revision had been directed to be borne by tbe parties so
F that it was rendered not payable by the tenant. Since the question in
regard to the effect of costs not being allowed by a decree or order did
not arise in the case of Smt. Phoolwati (supra) there was really no
occasion to approve in that case the judgment appealed against in the
instant case.

G
In view of the foregoing discussion we are of the opinion that on
the facts of the instant case the appellant was entitled to the benefit of .A
Section 39 read with Section 40 of the Act and to be absolved from his
liability to be evicted from the shop in question on account of the
deposit made by him on 19th July, 1972 referred to above. In the
ff result, this appeal succeeds and is allowed and the suit of the plaintiff-
BANARSI LAL v. SAGHIRAN BEGUM IOJHA, J.] 827
}
respondent in so far as the eviction of the appellant from the shop in A
question is concerned, is dismissed. The landlord-respondent shall be
entitled to withdraw the various amounts including costs of suit
deposited by the tenant-appellant in the courts below. In the circum-
stances of the case, however, the parties shall bear their own costs of
this appeal.
B
·"I'
R.S.S. Appeal allowed .

...•I
·'

I
.A.