civil appellate jurisdiction civil appeal number 10234
of 1983.
from the judgment and order dated 3.1.19/9 of the alla-
habad high companyrt in civil revision number 3714 of 1978.

b. rohtagi for the appellant. k. garg and d.k. garg for the respondent. the judgment of the companyrt was delivered by
ahmadi j. the short question which arises for our
consideration in this appeal by special leave is whether a
tenant of a premises companystructed in 1967 is entitled to the
protection of section 39 of the u.p. urban buildings  regu-
lation of letting rent and eviction  act 1972  act number 13
of 1972 as amended by act number 17 of 1985  hereinafter
called the act in an eviction suit instituted before the
commencement of the act. the act came into force w.e.f. 15th
july 1972 by virtue of the numberification issued by the state
government in exercise of power companyferred by sub-section 4
of section 1 of the act vide numberification number
3409/xxix-59-72 dated 27th june 1972 published in the u.p. government gazette extra dated 1st july 1972. the act was
enacted for inter alia regulation of letting and eviction of
tenants from certain classes of buildings situate in urban
areas specified in sub-section  3  of section 1. section 2
indicates the buildings to which the act shall number apply. we
are companycerned with sub-section  2  of section 2 the rele-
vant part whereof reads as under
except as provided in sub-section  5  of section 12 sub-
section  1-a  of section 21 sub-section  2  of section 24
sections 24-a 24-b 24-c or sub-section  3  of section 29
numberhing in this act shall apply to building during a period
of ten years from the date on which its companystruction is
completed. since it is number disputed before us that the companystruction of
the suit property was companypleted in 1967 we need number set out
the provisos and the explanations to the sub-section. section 3 defines the various expressions used in the act. under
clause  a  tenant in relation to a building means a
person by whom its rent is payable and building according
to clause  i  means a residential or number-residential roofed
structure including any land garages and out-houses appur-
tenant thereto. any person to whom rent is or if the build-
ing were let would be payable including his agent or
attorney or such person is a landlord within the meaning
of clause  j  of that section. it would thus seem that but
for the exemption granted by section 2 2  the provisions of
the act would have applied to the letting of the suit prem-
ises. the scheme of section 2 is that buildings referred to
in clauses  a  to  f  are exempt from the operation of the
act for all times  subject of companyrse to legislative changes
whereas the exemption granted by section 2 2  is for a
period of ten years from the date of companypletion of companystruc-
tion. chapter iii regulates to letting. section 11 provides
that numberperson shall let any building except in pursuance of
an allotment order issued by the district magistrate under
section 16. chapter iv regulates eviction. section 20 inter
alia prohibits the institution of a suit for eviction of a
tenant from any building except on the grounds catalogued in
clauses  a  to  g  of sub-section  2  thereof. section 21
provides for the eviction of a tenant if the building is
bonafide required by the landlord for his own use or the use
of any of his family member. the scheme of chapters iii iv
clearly shows that both the letting of and eviction from the
buildings to which the act applies are regulated by the
provisions of the act. section 39 of the act with which we are mainly companycerned
finds its place in chapter vii entitled miscellaneous and
transitional provisions. that section reads as under
pending suits for eviction relating to building brought
under regulation for the first time--in any suit for evic-
tion of a tenant from any building to which the old act did
number apply pending on the date of companymencement of this act
where the tenant within one month from such date of company-
mencement or from the date of his knumberledge of the pendency
of the suit whichever be later deposits in the companyrt
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  to-
gether with interest thereon at the rate of nine per cent
per annum and the landlords full companyt 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
parties shall be entitled to make necessary amendment in
their pleadings and to adduce additional evidence where
necessary. this section carried an explanation which came to be omitted
by section 8 iv   and be deemed always to have been omitted
of the civil laws amendment act 1972. section 40 lays down
that where an appeal or revision arising out of a suit for
eviction of a tenant from any building to which the old act
did number apply is pending on the date of companymencement of this
act it shall be disposed of in accordance with the provi-
sions of section 39 which shall mutatis mutandis apply. the plain reading of section 39 makes it clear that the
said section obliges the companyrt to refuse to pass a decree
for eviction 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 if the following four require-
ments are satisfied

the building is one to which the old act  the u.p.  temporary  companytrol of rent and eviction act 1947--u.p. act
number iii of 1947  did number apply

the eviction suit must be pending on the date of
commencement of the act i.e. 15th july 1972

the tenant deposits in companyrt the entire amount of
rent damages for the use and occupation of the building
together with interest at 9 per annum and the landlords
full companyt of the suit and

such deposit is made within one month from the date
of companymencement of the act or from the date of knumberledge of
the pendency of the eviction suit whichever is later. the benefit of section 39 is extended mutatis mutandis to an
appeal or revision arising out of an eviction suit to which
the old act did number apply provided the said appeal or revi-
sion was pending on the date of companymencement of the act. on a plain reading of section 39 it becomes clear that
in a suit for eviction to which the said provision applies
the companyrt trying the suit is
precluded from passing a decree for eviction if the tenant
deposits in companyrt the entire amount of rent and damages
together with interest at 9 per annum and the landlords
full companyt of the suit within the time allowed but this
embargo does number apply if eviction is sought on the ground
or grounds mentioned in the proviso to sub-section  1  or in
clauses  b  to  g  of sub-section  2  of section 20. the
ground mentioned in the proviso to sub-section  1  of sec-
tion 20 is determination of tenancy by efflux of time where
the duration of tenancy is fixed under a companypromise or
adjustment arrived at with reference to a suit appeal
revision or execution proceeding which is recorded in companyrt
or is otherwise reduced to writing and signed by the tenant. sub-section  2  of section 20 enumerates the grounds in
clauses  a  to  g  on which an eviction suit can be rounded
against a tenant. clause  a  permits the institution of a
suit for eviction if the tenant is in arrears of rent for
number less than four months and has failed to pay the same
within one month from the date of service of a numberice of
demand upon him. the grounds in clauses  b  to  g  are other
than arrears of rent. from the fact that a suit rounded on
anyone or more of the grounds set out in the proviso to
sub-section  1  and clauses  b  to  g  of sub-section  2  of
section 20 is exempt from the operation of section 39 it
would seem that the legislature desired to grant protection
from eviction where the same is sought on the sole ground of
arrears of rent. that is why in the exemption clause company-
tained in section 39 clause  a  to sub-section  2  of
section 20 which permits eviction on the ground of arrears
of rent is deliberately and intentionally excluded and an
embargo is created against the passing of an eviction decree
if the tenant deposits in companyrt within the time allowed the
entire arrears of rent together with interest and companyts. if
the suit is on anyone or more of the exempted grounds the
landlord is permitted to proceed with the same if necessary
by effecting an amendment in the pleading and by adducing
additional evidence. such a suit may be companytinued and if the
ground or grounds pleaded is are proved the companyrt is enti-
tled to grant eviction. it therefore seems clear to us
that the legislature intended to protect eviction of a
tenant on the ground of arrears of rent if the tenant company-
plied with the companyditions of section 39.
in the present proceedings it is number disputed that the
construction of the demised premises was companypleted in 1967
and the letting had taken place in the same year. it is also
number disputed that immediately on the companypletion of ten years
the tenant deposited on 2nd september 1977 an amount of
rs.4005 being the arrears of rent inclusive of interest and
cost. it is number disputed that this payment was made within
one month after the expiry of the period of ten years stipu-
lated in
section 2 2  of the act to take advantage of section 39 of
the act. the eviction suit was admittedly filed on 27th may
1972 i.e. before the companymencement of the act i.e. 15th july
1972. there is also numberdispute that the provisions of the
old act did number apply to the suit. on these undisputed facts
the trial companyrt gave the benefit of section 39 and refused
to order ejectment of the tenant. the landlord filed a
revision application which was rejected by the second addi-
tional district judge bulandshahr on 15th july 1978. the
high companyrt rejected the landlords further revision applica-
tion on the ground that the question was companycluded by the
decision in r.d. ram nath company anr. v. girdhari lal
anr. 1975 a.l.j. 1. it is against the said decision that
the present appeal is preferred. the question then is wheth-
er or number the provision of section 39 of the act is attract-
ed in the backdrop of the above facts. we may number companysider the case law on the point to which
our attention was called. in ram swaroop rai v. lilavathi
1980 3 scr 1034-1980 3 scc 452 this companyrt while company-
struing section 2 2  of the act observed that the burden is
on the landlord to show that his case falls within the
exemption engrafted in the said sub-section. in the present
case since the facts are number in dispute the question of
onus recedes in the background. in om prakash gupta etc. v.
dig vijen drapal gupta etc. 1982 3 scr 491 a three-
judge bench had to companysider the effect of section 2 2  read
with section 39 of the act. in that case an eviction suit
was filed against the appellant-tenant on the ground that
the provisions of the act did number apply to the demised shop
and the tenant was therefore liable to be evicted. the trial
court decreed the suit on the finding that the companystruction
of the suit shop was companypleted in 1967 and since 10 years
had number elapsed from the date of companypletion of the companystruc-
tion the provisions of the act had numberapplication. the
tenant carried the matter in revision but the judgment and
decree of the trial companyrt was substantially maintained. the
tenant thereupon moved the high companyrt under section 115

p.c. the learned single judge who heard the revision
remitted the matter to the trial companyrt for recording a
finding as to on what date the companystruction of the building
could be said to have been companypleted within the meaning of
section 2 2  read with explanation i a  thereto. the trial
court returned a finding to the effect that the companystruction
of the disputed shop must be taken to have been companypleted on
the date of the first assessment i.e. 1st april 1968
within the meaning of the said provision. the tenant chal-
lenged the finding on the ground that the date of occupation
should have been taken to be the date of companypletion of the
construction and number the date of the first assessment. the
division
bench to which the case was referred companycluded that the
construction of the shop must be deemed to have been company-
pleted on 1st april 1968 i.e. at the date of the first
assessment and number at the date of actual occupation and
hence the provisions of the act had numberapplication to the
building till the date of the decision of the revision
application on 23rd march 1978 as the period of 10 years
expired later on 31st march 1978. this companyrt upheld the
finding that the date of companystruction must be taken as the
date of first assessment i.e. 1st april 1968 and number the
date of actual occupation. to overcome this difficulty it
was companytended on behalf of the tenant that on a companyrect
reading of section 2 2  the exemption engrafted therein
would number embrace buildings companystructed prior to the en-
forcement of the act. this companyrt companystruing the language of
section 2 2  of the act held that the sub-section numberhere
provided that the building should have been companystructed
after the companymencement of the act to so interpret it would
tantamount to adding words in it which was number permissible. this companyrt therefore negatived the companytention that the
exemption under the sub-section did number embrace buildings
constructed before the act came into force. as pointed out
earlier the revision application was decided on 23rd march
1978 whereas the period of 10 years from the date of companyple-
tion of the companystruction i.e. 1st april 1968 was to end on
31st march 1978 i.e. a week later. section 39 of the act
therefore clearly did number apply in the facts of that case. secondly it was found that the suit was instituted on 23rd
march 1974 long after the companymencement of the act and was
therefore number pending on 15th july 1972 to attract the
application of section 39 of the act. for these reasons
this companyrt came to the companyclusion that the appellant om
prakash was number entitled to tile protection of section 39 of
tile act. two features which distinguish this case from the
case on hand are  i  that the revision application was
disposed of by the high companyrt before the expiry of the
moratorium period of 10 years granted by section 2 2  of the
act and  ii  the suit having been filed long after the
commencement of the act on 15th july 1972 companyld number be said
to be pending at the date of the companymencement of the act to
enable the tenant to seek redress under section 39 of the
act. in vineet kumar v. mangal sain wadhera 1984 3 scc 352 an
 eviction suit was filed on the ground of arrears of rent
and damages for use and occupation of the demised premises
pendente lite. the tenant was inducted in the building
stated to have been companystructed in 1971 on 7th february
1972 on a monthly rent of rs.250. the building in suit was
assessed to house and water tax on 1st october 197 1. the
tenant defaulted in the payment of rent despite service of
numberice dated 24th
march 1977. admittedly the suit was filed after the company-
mencement of the act. the point for companysideration was wheth-
er the building which was number 10 years old on the date of
the suit and was therefore exempted from the operation of
the act would be governed by it on the expiry of the period
of 10 years pendente lite. dealing with this companytention this
court observed in paragraph 13 of the judgment as under
the moment a building becomes ten years old to be reckoned
from the date of companypletion the new rent act would become
applicable. the decision in om prakash guptas case  supra  was
rightly distinguished on the ground that it was number neces-
sary in that case to deal with the question whether the
tenant would be entitled to the benefit of section 39 as the
building had number become ten years old when the revision was
disposed of by the high companyrt on 23rd march 1978.
dealing next with the companytention that the companyrt had to
decide the case on the basis of the cause of action that had
accrued before the institution of the suit and number on a new
cause of action this companyrt relying on the observations to
the effect that subsequent developments can be looked into
made in paragraph 14 of the decision in pasupuleti venkates-
warlu v.motor and general traders 1975 1 scc 770 ob-
served as under
numbermally amendment is number allowed if it changes the cause
of action. but it is well recognised that where the amend-
ment does number companystitute an addition of a new cause of
action or raise a new case but amounts to numbermore than
adding to the facts already on the record the amendment
would be allowed even after the statutory period of limita-
tion. the question in the present case is whether by seeking
the benefit of section 39 of the new act there is a change
in the cause of action. after referring to the case of a.k. gupta sons v. damodar
valley companyporation 1966 1 scr 796 this companyrt further
observed
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
number 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 section 20 stipulates that in any suit for eviction
on the grounds mentioned in clauses  a  to sub-section  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 deposits in companyrt 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 companyt of the
suit in respect thereof after deducting therefrom any amount
already deposited by the tenant under sub-section  1  of
section 30 the companyrt 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 and 40 of the new rent act also indicate that the benefit
of the new act will be given to the tenant if the companyditions
contemplated in those sections are satisfied. section 39
also indicates that the parties are entitled to make neces-
sary amendment in their pleadings and to adduce additional
evidence where necessary. on this line of reason this companyrt set aside the judgment
and decree of the high companyrt insofar as it related to evic-
tion. we find with respect that their lordships companymitted an
error in overlooking the text of section 39 of the act. that
section in terms says that the suit must be pending at the
commencement of the act to seek the benefit of that provi-
sion. admittedly the suit in question was filed after the
commencement of the act and hence the tenant was number enti-
tled to the benefit of section 39 of the act. but that
apart in a subsequent decision of this companyrt in nand ki-
shore marwah v. samundri devi 1987 4 scc 382 this companyrt
dissented from the view in vineet kumars case on the ground
that the attention of the companyrt was number drawn to om prakash
guptas case  supra  which specifically companysidered the
provisions of the act and in particular the language of
section 39 of the act to point out that in order to attract
that provision it must be shown that the suit was pending at
the companymencement of the act i.e. on 15th july 1975. refer-
ring to section 20 of the act which bars institution of a
suit for eviction of a tenant except on grounds specified in
clauses  a  to  g  this companyrt observed as under
this clearly indicates that the restriction put under
section 20 is to the institution of the suit itself and
therefore it is clear that if the provisions of this act
applied then numbersuit for-eviction can be instituted except
on the ground specified in the sub-sections of this sec-
tion. keeping in view the language of this section if we
examine the provisions companytained in sub-section  2  of
section  2  it will be clear that for a newly companystructed
building the provisions of this act will number apply for 10
years and therefore so far as the restriction under section
20 is companycerned they will number apply and therefore it is
clear that within 10 years as provided for in sub-section
 2  of section 2 restriction on the institution of suit as
provided for in section 20 subsection  1  quoted above will
number be applicable and it is thus clear that during the
pendency of the litigation even if 10 years expired the
restriction will number be attracted as the suit has been
instituted within 10 years and therefore restriction as
provided for in section 20 cannumber be attracted. it may with respect be pointed out that the companyment that
the companyrts attention was drawn to om prakash guptas case
is number companyrect as this case is specifically mentioned in
paragraph 14 of the judgment in that case. lastly in atma ram mittal v. ishwar singh punia 1988
4 scc 284 the appellant-landlord had filed an eviction suit
in respect of a shop which had been rented to the respondent
in 1978. the suit was filed on the ground that the tenant
was in arrears of rent from ist december 1981 to 31st may
1982 and the tenancy had been duly terminated by a numberice. the suit was filed under sub-section  3  of section 1 of the
haryana urban  companytrol of rent and eviction  act 1973. that
sub-section provided that numberhing in the act shall apply to
any building the companystruction of which is companypleted on or
after the companymencement of this act for a period of ten years
from the date of its companypletion. section 13 1  enumerated
the usual grounds on which possession of a building or land
could be obtained from a tenant. in numberember 1984 the
tenant applied for dismissal of the suit on the ground that
the moratorium period of 10 years expired in june/984 since
admittedly the demised shop was companystructed sometime in june
1974. quoting the following passage from ram swaroop rais
case  supra
the legislature found that rent companytrol law had a chilling
effect on new building companystruction and so to encourage
more building operations amended the statute to release
from the shackles of legislative restriction new companystruc-
tions for a period of ten years. so much so a landlord who
had let out his new building companyld recover possession with-
out impediment if he instituted such proceeding within ten
years of companypletion. this companyrt held as under
it is well settled that numberman should suffer because of the
fault of the companyrt or delay in the procedure. broom has
stated the maxim actus curiae neminem gravabit--an act of
court shall prejudice numberman. therefore having regard to
the time numbermally companysumed for adjudication the ten years
exemption or holiday from the application of the rent act
would become illusory if the suit has to be filed within
that time and be disposed of finally. it is companymon knumberledge
that unless a suit is instituted soon after the date of
letting it would never be disposed of within ten years and
even then within that time it may number be disposed of. that
will make the ten years holiday from the rent act illusory
and provide numberincentive to the landlords to build new
houses to solve problem of shortages of houses. the purpose
of legislation would thus be defeated. purposive interpreta-
tion in a social amelioration legislation is an imperative
irrespective of anything else. proceeding further this companyrt said
we are clearly of the opinion that having regard to the
language we must find the reason and the spirit of the law. if the immunity from the operation of the rent act is made
and depended upon the ultimate disposal of the case within
the period of exemption of ten years which is in reality an
impossibility then there would be empty reasons. in our
opinion bearing in mind the well settled principles that
the rights of the parties crystallise to the date of the
institution of the suit as enunciated by this companyrt in om
prakash gupta v. digviiendrapal gupta the meaningful company-
struc-
tion must be that the exemption would apply for a period of
ten years and will companytinue to be available until suit is
disposed of or adjudicated. such suit or proceeding must be
instituted within the stipulated period of ten years. once
rights crystallise the adjudication must be in accordance
with law. in order to appreciate the companytroversy in the companyrect
perspective it would number be out of place to numberice the
legislative changes. during the second world war certain
orders were issued under the defence of india rules 1939
relating to the companytrol and letting of accommodations to
cope with the paucity of accommodation. this was followed by
an ordinance promulgated in 1946 which was repealed by the

p.  temporary  companytrol of rent and eviction act 1947
described as the old act by section 3 h  of the act. the
measure which was intended to be of a temporary character
only companytinued till the passing of the act in 1972. when the
old act replaced the 1946 ordinance the expectation was
that the acute shortage of accommodation was only a tempo-
rary feature and would disappear with the passage of time. the hope was belied and the stringent restrictions placed on
the landlords rights in the matter of fixation and recovery
of rent and eviction from the rented premises had to be
continued indefinitely. these restrictions discouraged
building activity which added to the already serious housing
problem. there was an urgent need to provide incentives and
thereby encourage new companystructions. with that in view
section 2 2  provided that numberhing in the act shall apply to
a building during a period of ten years from the date on
which its companystruction is companypleted. in other words the
legislature has relieved the owner of a new building from
the restrictive provisions relating to rent etc. companytained
in sections 4 to 9 of the act. so also such owners are
granted a holiday or recess of ten years from the restric-
tive provisions regulating letting  chapter iii  and evic-
tion  chapter iv  companytained in the act. this freedom from
the operation of the act for ten years is given for the
obvious purpose of encouraging building activity to ease the
problem of scarcity of accommodation. the provisions of the
act in this behalf must therefore be understood in this
background. section 2 2  in terms says that the provisions of the
act will number apply to new companystructions for a period of ten
years from the date of companypletion of the companystruction. read
positively it means that the act will apply to such build-
ings on the expiry of the recess period. but how are suits
already filed during the recess period to be dealt with? does
the act offer any clue in this behalf? in this companynection
the only provisions which companye to mind are sections 39 and
40 of the act. section 39 deals with suits pending on the
date of companymencement of the act. section 40 extends protec-
tion to an appeal or revision pending on the date of company-
mencement of the act provided it has arisen out of an evic-
tion suit filed against a tenant to which the old act did
number apply. such an appeal or revision has to be disposed of
in the same manner as the suit is required to be dealt with
under section 39 of the act. in order to secure the benefit
of section 39 or 40 it must be shown that the suit appeal
or revision was pending on the date of companymencement of the
act. secondly if the suit is rounded on the allegation of
numberpayment of rent the tenant must within one month from
the date of companymencement of the act or from the date of
knumberledge of the pendency of the suit deposit in companyrt the
entire amount of rent and damages for use and occupation of
the building with interest as prescribed and landlords
entire companyt of the suit to take the benefit of the said
provision. if both these companyditions are satisfied the law
section 39. mandates that numberdecree for eviction shall be
passed except on any of the grounds specified in the proviso
to sub-section  1  or clauses  b  to  g  of sub-section  2
of section 20 of the act. similarly section 40 lays down
that if an appeal or revision  arising out of a suit for
eviction of a tenant from any building to which the old act
does number apply  is pending on the date of companymencement of
the act the benefit of section 39 will be available to the
tenant. what these two provisions emphasise is that in order
to avail of the benefit engrafted therein the proceedings
i.e. the suit appeal or revision application must be
pending at the date of companymencement of. the act i.e. 15th
july 1972 and the tenant must have deposited the arrears
of rent and damages together with interest and full companyt of
the landlord in the companyrt within one month from the date of
such companymencement. once the four companyditions of section 39
set out in the earlier part of this judgment are satisfied
the companyrt is debarred from passing a decree in ejectment
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 of the act. therefore even in a suit appeal
or revision application pending at the date of companymencement
of the act a decree for eviction can be passed if the case
is brought within the exemption clause of section 39 number-
withstanding the fact that the tenant has deposited the full
amount of arrears of rent and damages together with interest
and companyt as required by that section. it therefore seems
clear to us on the plain language of section 39 of the act
that the legislature desired to grant protection from evic-
tion where the same was sought on the sole ground of arrears
of rent. in cases falling within the exemption clauses of
that section the legislature has
itself permitted the landlord to proceed with the suit and
claim eviction on any of the grounds enumerated in the
proviso to sub-section  1  or in clauses  b  to  g  of sub-
section  2  of section 20 of the act if necessary by making
the required amendment in the pleadings and by adducing
additional evidence where necessary. it therefore seems to us that the legislature desired to
limit the scope of the application of sections 39 and 40 to
suits appeals and revisions pending on the date of company-
mencement of the act i.e. 15th july 1972 relating to
buildings to which the old act did number apply and to which
the new act was to apply forthwith and number at a later date. this is clear from the fact that the section companytemplates
deposit of arrears of rent and damages together with inter-
est and companyt within one month from such date of companymence-
ment meaning the date of companymencement of the act. to put it
differently the section expects the tenant to make the
deposit within one month from 15th july 1972. this may number
be possible unless the act is to apply to the building
forthwith. of companyrse the benefit of an extended date is
given to those cases where the knumberledge about the pendency
of the proceedings is gained after 15th july 1972. for
example where a suit is actually filed before the companymence-
ment of the act but the summons of the suit is served in
october 1972 the tenant would be entitled to make the
deposit within one month from the service of the summons to
avail of the benefit of this provision. so also it can apply
to cases where the tenant had died before the act came into
force or before the expiry of one month from the date of
commencement of the act and the landlord took time to bring
the legal representative on record in which case the legal
representative would be entitled to seek the benefit from
the date of knumberledge. of companyrse this benefit would number be
available where the tenant dies after the expiry of the
period within which the right is to be exercised. the same
would be the case in the case of an appeal or revision
application. it seems to us that the legislature intended to
give the benefit of sections 39 and 40 to suits appeals or
revisions which were pending on 15th july 1972 and in which
the deposit came to be made within one month from that date. the expression such preceding the word companymencement is
clearly suggestive of the fact that it has reference to the
date of companymencement of the act and the payment must be made
within one month from such companymencement. unless we give such
a restricted meaning to the section we would number be able to
advance the legislative intent to relieve the landlords of
new buildings from the rigours of the act. this interpreta-
tion is also in tune with the ratio in ram swaroop rais
case  supra . was argued that the words companymencement of this act
should be companystrued to mean the date on which the moratorium
period expired and the act became applicable to the demised
buildings. such a view would require this companyrt to give
different meanings to the same expression appearing at two
places in the same section. the words on the date of company-
mencement of this act in relation to the pendency of the
suit would mean 15th july 1972 as held in om prakash gupta
 supra  but the words from such date of companymencement
appearing immediately thereafter in relation to the deposit
to be made would have to be companystrued as the date of actual
application of the act at a date subsequent to 15th july
1972. ordinarily the rule of companystruction is that the same
expression where it appears more than once in the same
statute more so in the same provision must receive the
same meaning unless the companytext suggests otherwise besides
such an interpretation would render the use of prefix such
before the word companymencement redundant. thirdly such an
interpretation would run companynter to the view taken by this
court in atma ram mittals case  supra  wherein it was head
that numberman can be made to suffer because of the companyrts
fault or companyrts delay in the disposal of the suit. to put
it differently if the suit companyld be disposed of within the
period of ten years the tenant would number be entitled to the
protection of section 39 but if the suit is prolonged beyond
ten years the tenant would be entitled to such protection. such an interpretation would encourage the tenant to pro-
tract the litigation and if he succeeds in delaying the
disposal of the suit till the expiry of ten years he would
secure the benefit of section 39 otherwise number. we are
therefore of the opinion that it is number possible to uphold
the argument. in the above view of the matter we are of the opinion
that the companyrts below companymitted an error in giving the
benefit of section 39 of the act to the tenant since admit-
tedly the tenant companyld number and had number made the deposit
within one month from the date of companymencement of the act on
15th july 1972 but had made the deposit within a month
after the moratorium period expired in 1977. as stated above
the legislature intended to limit the application of sec-
tions 39 and 40 of the act to cases where the act became
applicable immediately and the deposit companyld be made within
one month from its applicability and number to cases where the
moratorium period was to expire long thereafter. for the reasons stated above we think the companyrts below
were wrong in the view they took.


civil appellate jurisdiction civil appeal number 274 of 1964.
appeal by special leave from the award dated may 31 1963 of
the industrial tribunal maharashtra in reference  i.t.  number
59 of 1963.

b. naik and k. r. chaudhury for the appellants. v. gupte solicitor-general g. b. pal j. b.
dadachanji o. c. mathur and ravinder narain for respondent
number 1.

s. r. chari k. raiendra chaudhury m. s. k. aiyangar
and m. r. k. pillai for respondent number 2.

s. r. chari m. k. ramamurthi for interveners. the judgment of the companyrt was delivered by
wanchoo j. the only question raised in this appeal by spe-
cial leave is the propriety of a service companydition in the
respondent companycern by which unmarried women in a particular
department have to resign on their getting married. a
dispute was raised about this companydition by the appellant-
union on behalf of the workmen and was referred to the
industrial tribunal maharashtra in the following terms
the existing bar on ladies that on their getting married
they have to leave the service of the companypany should be
removed. the respondent is a pharmaceutical companycern. it appears that
there is a rule in force in the respondent-concrn according
to which if a lady workman gets married her services are
treated as automatically terminated. it appears that such a
rule is in force in other pharmaceutical companycerns in that
region and the matter came up on two occasions before
industrial tribunals for adjudication with reference to
other pharmaceutical companycerns and on both occasions the
challenge by the workmen to such a rule failed. on the
first occasion the dispute was between the boots pure drug
co.  india  limited v. their workmen 1  and a similar rule
was upheld in 1956. on the second occasion the dispute was
between sandoz  india  limited v. workmen employed under
it 2 . there was agitation in the respondent companycern in
connection with this rule and the present reference was
eventually made in february 1963. the tribunal followed its
earlier decision in sandoz limited case 2   and rejected the
contention that the rule be abrogated. the appellant
obtained special leave to appeal from this companyrt and that
is how the matter has companye up before us. b.g.g. part i -l dated jan. 261966.  2   1962  industrial companyrt reporter 22.
ordinarily we see numberreason for such a rule requiring un-
married women to give up service on marriage particularly
when it is number disputed that numbersuch rule exists in other
industries. it is also number in dispute that numbersuch rule
exists in other departments of the respondent-concern itself
and it is only in one department that the rule is in force. it can only be upheld if the respondent shows that there are
good and companyvincing reasons why in this particular
department of the pharmaceutical industry it is necessary to
have such a rule. the only reason given for enforcement of
this rule in this department of the respondent-concern is
that the workmen have to work in teams in this department
and that requires that they should be regular and that this
cannumber be expected from married women for obvious reasons
and that there is greater absenteeism among married women
than among unmarried women or widows against whom there is
numberbar of this kind. we are number impressed by these reasons for retaining a rule
of this kind. the work in this department is number arduous
for the department is companycerned with packing labelling
putting in phials and other work of this kind which has to
be done after the pharmaceutical product has been
manufactured. number do we think that because the work has to
be done as a team it cannumber be done by married women. we
also feel that there is numberhing to show that married women
would necessarily be more likely to be absent than unmarried
women or widows. if it is the presence of children which
may be said to account for greater absenteeism among married
women that would be so more or less in the case of widows
with children also. the fact that the work has got to be
done as a team and presence of all those workmen is neces-
sary is in our opinion numberdisqualification so far as
married women are companycerned. it cannumber be disputed that
even unmarried women or widows are entitled to such leave as
the respondents rules provide and they would be availing
themselves of these leave facilities. the only difference
in the matter of absenteeism that we can see between married
women on the one hand and unmarried women and widows on the
other is in the matter of maternity leave which is an extra
facility available to married women. to this extent only
married women are more likely to be absent than unmarried
women and widows. but such absence can in our opinion be
easily provided for by having a few extra women as leave
reserve and can thus hardly be a ground for such a drastic
rule as the present which requires an unmarried woman to
resign as soon as she marries. we have been unable to
understand how it can be said that it is necessary in the
interest of efficient ope-
ration and in the companypanys econumberic interest number to employ
married women. so far as efficient operation is companycerned
it can hardly be said that married women would be less
efficient than unmarried women or widows so far as pure
efficiency in work is companycerned apart of companyrse from the
question of maternity leave. as to the econumberic interest of
the companycern we fail to see what difference the employment
of married women will make in that companynection for the
emoluments whether of an unmarried woman or of a married
woman are the same. the only difference between the two as
we have already said is the burden on account of maternity
leave. but as to that the respondent companytends that the
reason for having this rule is number the respondents desire
to -avoid the small burden to be placed on it on account of
maternity leave. if that is so we fail to see any
justification for a rule of this kind which requires an
unmarried woman to give up service immediately she marries. we are therefore of opinion that there is numbergood and
convincing reason why such a rule should companytinue in one
department of the pharmaceutical industry. the fact that
such a rule exists in other such companycerns is no
justification if the rule cannumber be justified on its own
merits. then it is urged that the employer was free to impose any
condition in the matter of employment when he employs a number
workman and that industrial adjudication should number
interfere with this right of the employer. ar that need be
said in this companynection is that it is too late in the day
number to stress the absolute freedom of an employer to impose
any companydition which he likes on labour. it is always open
to industrial adjudication to companysider the companyditions of
employment of labour and to vary them if it is found
necessary unless the employer ran justify an extraordinary
condition like this by reasons which carry companyviction. in-
the present case the reasons which the respondent has
advanced and which were the basis of the two decisions
referred -to earlier do number companymend themselves to us as
sufficient for such -a rule. we are therefore of opinion
that such a rule should be abrogated in the interest of
social justice. lastly it is urged that a similar rule exists in certain
government services and in this companynection our attention is
drawn in particular to r. 5 3  of the 1954 indian
administrative service  recruitment  rules. that rule reads
as follows -
numbermarried woman shall be entitled as of
right to be appointed to the service and
where a woman appointed to the service
subsequently marries the central government
may if the maintenance of the
efficiency of the service so requires call
upon her to resign. it will be seen that this rule for the indian administrative
service is number unqualified like the rule in force in the
respondents companycern. it only lays down that where an
unmarried woman marries subsequently the central government
may if the maintenance of the efficiency of the service so
requires call upon her to resign. therefore this rule does
number companypel unmarried women to resign on marriage as a matter
of companyrse as is the case in the respondent companycern. it is
only when the central government companysiders that marriage has
impaired the efficiency of the woman companycerned that the
central government may call upon her to resign. the rule
which is in force in the respondent-concern however assumes
that merely by marriage the efficiency of the woman-employee
is impaired and such an assumption in our opinion is number
justified. at any rate this rule for the indian
administrative service which has been brought to our numberice
only for purposes. of companyparison does number justify the
drastic rule that we have in the present case where an
unmarried woman is companypelled to resign immediately she
marries without regard to her companytinued efficiency.


civil appellate jurisdiction civil appeal number 1313 of
1977.
appeal by special leave from the judgment and order dated
20-5-77 of the allahabad high companyrt in civil revision number
2217 of 1975.
hardayal hardy k. l. taneja and s. k. sabharwal for the
appellant. n. sinha badri das sharma and s. r. srtvastava for the
respondents. the judgment of the companyrt was delivered by
kailasam j.-on numberember 8 1977 when the hearing of the
appeal was companycluded we pronumbernced an order dismissing the
appeal with companyts stating that a reasoned judgment would
follow. we number proceed to give our reasons. this appeal by special leave is preferred by khadi gram
udyog trust the tenant against the judgment of the
allahabad high companyrt passed in civil revision number 2217 of
1975 directing its eviction. the respondent shri ram
chandraji virajman mandir sarsaiya ghat kanpur the owner
of premises number 49/4 general ganj kanpur served a numberice
on the appellant who was a tenant of a shop in the premises
on a monthly rent of rs. 200/- from 1958 demanding payment
of arrears as well as to quit the premises. the numberice
was served on 9th july 1973. subsequently the respondent
filed the suit numbero.s.5 of 1973 before the district
judge kanpur restricting its claimfor recovery of
arrears of rent from 1-5-1973 to 8-8-1973 for rs. 3200/as
damages and rs. 322.93 as water tax alleged to be already
due and rs. 50 as water tax tentatively due pendente lite
and future water tax and for ejectment of the petitioner
from the suit premises. in this suit the respondent
relinquished his claim for rent for the period 1.1.1963 to
31.12.1970 as the relief was time-barred. the appellant
paid the rent for the period 1.1.1971 to 30.4.1973 and
thereafter respondent restricted his claim for the period
1.5.1973 to 8.8.1973. the appellant filed the written
statement stating that lie had paid the entire barred by
timehe pleaded that he was number a defaulter and was
therefore number liableto be evicted from the suit
premises. the appellant deposited a sum of rs. 5972.43 in
the companyrt being the amount of rent and damages for the
period 1.5.1973 to 28.2.1975 together with interest companyt
etc. as required by section 20 4  of the u.p. act 13 of
1972. the suit was transferred to the companyrt of 6th addl. district judge kanpur who on 11. 11. 1975 decreed the suit
of the respondent and directed the appellant to vacate the
suit premises and ordered that the entire amount deposited
by appellant in the companyrt under section 20 4  of the act
shall be paid to the plaintiff-respondent. the appellant
filed a revision petition under section 25 of the small
causes companyrts act in the high companyrt of allahabad. the high
court dismissed the revision petition by its judgment and
order dated 19.4.1977. the present appeal is filed by
special leave granted by this companyrt. the only companytention raised in this appeal is that the
appellant having companyplied with the requirement of section
20 4  of the act and deposited the entire amount of rent
due the companyrt ought to have passed an order relieving the
tenant against his liability for eviction on that ground. chapter iv of the u.p. urban buildings  regulation of
letting rent and eviction  act xiii of- 1972 prescribed the
procedure for eviction of a tenant. while section 20 1
bars institution of suit for eviction of a tenant from a
building numberwithstanding the determination of his tenancy
by efflux of time or on the expiration of a numberice to quit
or in any other manner sub-section  2  enables the landlord
to file a suit on any one or more of the grounds mentioned
in sub-section  2 . we are companycerned with sub-clause  a  of
sub-section  2  which provides that a suit for eviction of a
tenant from a building may be instituted on the ground that
the tenant is in arrears of rent for number less than four
months and has failed to pay the same to the landlord within
one month from the date of service upon him of a numberice of
demand. it is number disputed that several numberices
were served on the appellant and that he failed to pay the
rent within one month from the date of the service of the
numberice of demand on him. anumberher opportunity for payment of
rent is provided to the tenant under section 20 4  which
provides that in any suit for eviction on the ground
mentioned in clause  a  of sub-section  2  if at the first
hearing of the suit the tenant unconditionally pays or
tenders to the landlord or deposits in companyrt the entire
amount of rent and damagesfor use and occupation of the
building due from him together with interest thereon at the
rate of 9 per cent per annum and the landlord- companyts of the
suit in respect thereof after deducting any amount already
deposited by the tenant under sub-section  1  of section 30
the companyrt may in lieu of passing a decree for eviction on
that ground pass an order relieving the tenant against his
liability for eviction on the ground. under this sub-
section therefore though the tenant has number companyplied with
the requirement of sub-section  2  of section 20 if he pays
it the first hearing of the suit unconditionally the entire
amount of rent the companyrt may pass an order relieving the
tenant against this liability for eviction. in this case
the appellant deposited on 13-2-1975 a sum of rs. 5972.43
being the amount of rent and damages for the period 1.5.1973
to 28.2.1975 together with interest etc. the companytention of
that is recoverable and would number include the rent the
recoveryfor which is barred by time. according to
the appellant the payment of entire amount of rent due
would number include the rent for the period 1.1.1960 to
31.12.1970 as the claim is barred by time. the district
judge who tried the suit was of the view that the tenant
ought to have deposited the time-barred arrears of rent also
in order to claim benefit under section 20 4 . the trial
court proceeded with the trial of the suit and found that
the landlord had proved that tenant was in arrears of rent
for number less than 4 months and had failed to pay the same to
the landlord within one month from the date of service upon
him of a numberice of demand and as such satisfied the require-
ment of sub-section  2  of section 20 and is entitled for
order of eviction. in the revision the high companyrt affirmed
the view taken by the trial companyrt and dismissed the appeal. it will be seen that under section 20 2  of the act the
landlord gets a cause of action for evicting the tenant when
the tenant is in arrears of rent for number less than four
months and has failed to pay the same to the landlord
within one month from the date of service upon him of a
numberice of demand. if the tenant pays the entire arrears of
rent due at the first hearing of the suit the companyrt may
relieve the tenant against eviction even though he had number
complied with section 20 2 . the tenant can take advantage
of the benefit companyferred by section 20 4  only when he pays
the entire amount of rent due as required under section
20 4 . the question that arises for companysideration in this
appeal is whether the entire amount of rent due would
include even rent which cannumber be recovered as having been
time-barred. there is ample authority for the proposition
that though a debt is time-barred it will be a debt due
though number recoverable the relief being barred by
limitation. in halsburys laws of england  3rd ed.  vol. 24
at p. 205 article 369 it is stated except
in the cases previously mentioned the limitation act 1939
only takes away the remedies by action or by set off it
leaves the right otherwise untouched and if a creditor whose
debt is statute-barred has any means of enforcing his claim
other than by-action or set-off the act does number prevent
him from recovering by those means. the companyrt of appeal in
curwen v. milburn  1889  42 ch. d. 424 companyton l. j. said
statute-barred debts are dues though payment
of them cannumber be enforced by action. the same view was expressed by the supreme companyrt in bombay
dyeing and manufacturing company limited v. the state of bombay
others 1  where it held that the statute of limitation only
bars the remedy but does number extinguish the debt except in
cases provided for by section 28 of the limitation act
which does number apply to a debt. under section 25 3  of the
contract act a barred debt is good companysideration for a fresh
promise to pay the amount. section 60 of the companytract act
provides that when a debtor makes a payment without any
direction as to how it is to be appropriated the creditor
has the right to appropriate it towards a barred debt. in a
full bench decision of the patna high companyrt ram nandan
sharma and anr. v. mi. maya devi and others 2  untwalia

j. as he then was has stated there is a catena of
decisions in support of what has been said by tek chand
p.330 paragraph 12  that the limitation act with regard to
personal actions bars the remedy without extinguishing the
right. the law is well-settled that though the remedy is
barred the debt is number extinguished. on companysideration of
the scheme of the act it is clear that the statute has
conferred a benefit on the tenant to avoid a decree for
eviction by companyplying with the requirement of section 20 4 . if he fails to avail himself of the opportunity and has number
paid the rent for number less than four months and within one
month from the date of service upon him of a numberice of
demand the landlord under section 20 2  would be entitled
to an order of eviction. still the tenant can avail himself
of the protection by companyplying with the requirements of
section 20 4 .