ZAFAR ALI SHAMSI Vs. ADDITIONAL DISTRICT JUDGE RAMPUR

JUDGEMENT

(1.) R. H. Zaidi, J. By means of this peti tion, filed under Article 226 of the Con stitution of India, petitioner prays for is suance of a writ, order or direction in the nature of certiorari quashing the judgment and order dated 13-111995, whereby the revision filed by the contesting respondent was allowed by the Revisional Court and the judgment and decree passed by the trial Court dated 6-12-1994 was set aside.

(2.) THE facts of the case, which are relevant for the purposes of the present case, in brief are that the petitioner filed a suit for ejectment and recovery of arrears of rent pleading that the respondent No.-2 was in arrears of rent since 1-7-1991 to 30-4- 1993. Admittedly, rate of rent was Rs. 300/- per month. A notice of demand and termination of tenancy was issued on 25-9-1993. In spite of service of said notice, the amount in question was not paid nor the shop in dispute was vacated by the petitioner. On the other hand, he was given reply of the said notice stating false facts. It was stated that the amount in question was deposited by him under Sec tion 30 of the U. P. Urban Buildings (Regulation of Letting, Rent and Evic tion) Act, 1972 (U. P. Act No. XIII of 1972), for short the Act, therefore, he was not in arrears of rent. Suit was contested by the petitioner pleading that he was neither in arrears of rent nor committed default in, payment of rent. Suit filed by the respon dent No. 2 was, therefore, liable to be dismissed. THE trial Court on the basis of the pleadings of the parties framed neces sary issues. THE parties produced evidence in support of their cases. THE trial Court after going through the material on record recorded finding in favour of the respon dent No. 2 and decreed the suit. Challeng ing the validity of the said decree, respon dent No. 2 filed a revision before the Court below. Before the Revisional Court, an application under Order VI, Rule 17, CPC was filed for amendment in the written statement. By means of the amendment, Respondent No. 2 wanted to claim the benefit of sub-section (4) of Section 20 of the Act. THE said application was objected to and opposed by the petitioner who has pleaded that the question of deposit under sub-section (4) of Section20of the Act was a question of law. It was, therefore, not necessary to amend the pleadings (written statement) for resolving the controversy involved in the present case. THE objec tions raised by the petitioner were upheld by the trial Court and the said application was rejected observing that it will be open to the petitioner to press the said point without 'mending the pleadings. Ul timately, the revision was heard by the Revisional Court and on the facts, it was found that the Respondent No. 2 was en titled to the benefit of sub- section (4) of Section 20 of the Act. It has been held that the whole amount as required was deposited under sub section (4) of Section 20 of the Act before the first date of hear ing. Having recorded the said finding, the Revisional Court allowed the revision and absolved Respondent No. 2 from the liability to be evicted from the shop in dispute by the judgment and order dated 13-11-1995, hence the present petition.

(3.) ADMITTEDLY, the rent from 1-7-1991 to 30-4-1993 at the rate of Rs. 300 per month was outstanding against the Respondent No. 2. Therefore, the petitioner was justified in sending a notice of demand and termination of tenancy. On receipt of the notice, it was open to the Respondent No. 2 to offer the said amount to the petitioner and in case of refusal the same amount could be deposited in the Court below. However, the some amount out of the aforesaid amount was already deposited under Section 30 of the Act but the application filed by the Respondent No. 2 under Section 30 of the Act was ul timately dismissed, therefore, the deposit made under Section 30 of the Act was of no avail. The defendant, thereafter, to save his tenancy deposited the whole amount which is required to be deposited under sub-sec tion (4) of Section 20 of the Act before the trial Court and went on to deposit the amount of rent as and when fell due under Order XV, Rule 5, CPC failing which his defence could be struck off. The Court below was right in holding that, under the facts and circumstances of the case, the Respondent No. 2 was liable to be exonerated from evic tion from the shop in dispute. Learned Counsel for the petitioner could not show from the material on record that the amount deposited by the Respondent No. 2 was lesser than the amount required to be deposited under the aforesaid provision. Further the Court below having dismissed the application of the petitioner for amendment of written statement observ ing that the plea of sub-section (4) of Sec tion 20 of the Act was a question of law and the Respondent No. 2 was at liberty to claim benefit of the aforesaid provision without amending the pleadings (written statement ). The said order was passed upholding the objection filed by the petitioner, therefore, at this stage it is not open to the petitioner to contend that there was no plea in the written statement regarding the claim of the benefit of sub section (4) of Section 20 of the Act. Sub missions made by the learned Counsel for the petitioner to the contrary cannot be accepted. Deposit of amount under sub section (4) of Section 20 of the Act is a matter of record. The benefit of the said section can be claimed if from the record it is proved the amount which is required to be deposited was deposited on or before the date of first hearing. The findings recorded by the Revisional Court that the amount, which was required to be deposited, was deposited by the respon dent before date of first hearing, is based on the material on record. No case for interference under Article 226 of the Con stitution of India is made out.