RAMA KANT Vs. SURYA NATH NAGAR

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution of India arising out of suit No. 539 of 1978 filed by Surya Nath Nagar opposite party No. 1 against the petitioner for ejectment and arrears of rent. The petitioner is the tenant. Opposite Party No. 1 is the landlord of the premises. The suit was decreed by the Judge Small Causes Court, Allahabad, by judgment dated 16th February 1980. The Judge Small Causes Court held that the rate of rent was Rs. 50/- per mensem which did not include Rs. 10/- per month as water tax as pleaded by the petitioner. It was further held that since 1-9-1973 the petitioner was in arrears of rent and the deposit of rent etc. did not fulfil the requirements of Section 20, sub- clause (4), of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, U. P. Act No. XIII of 1972, hereinafter referred to as the Act, and as such he is not entitled to the benefit of the same. Aggrieved by the decision dated 16th January 1980 a revision was filed under Section 25 of the Provincial Small Causes Court Act before the District Judge, Allahabad. The District Judge, Allahabad, dismissed the revision on 12th May 1980. The petitioner has now challenged the decision dated 12th May 1980 by means of the present petition. Sri Jagdish Swarup, Senior Advocate, appearing on behalf of the petitioner has raised only one contention before me. His contention is that under Section 20, sub-clause (4), of the Act the deposit which is required to be made should be only such deposit which according to the tenant is due from him and not what was ultimately found by the Court or claimed by the landlord. The Judge, Small Causes Court has recorded a categorical finding of fact :hat the rate of rent was Rs. 50/- per mensem. Admittedly according to this rate of rent the petitioner did not comply with the requirements of deposit as laid down in Section 20, sub-clause 4, of the Act and as such he cannot get the benefit of the said provision. Section 20, sub-clause (4), of the Act is as follows : "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 Court the entire amount of rent and damages for use and occupation of the building due from him such damages for use and occupation being calculated at the same rate as rent together with interest thereon at the rate of nine per cent per annum and the landlord's costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) of Section 30, the Court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground. " Under the above sub-clause (4) the tenant has to unconditionally pay or tender to the landlord or deposit in Court at the first hearing of the suit the entire amount of rent and damages for use and occupation of the building due from him. The question as to whether a tenant is entitled to the benefit of sub-clause (4) and whether he should be relieved from his liabili ty for eviction has to be considered, after the Court on examining the evidence on record, comes to the conclusion that the amount legally due has been paid, tendered or deposited by the tenant as prescribed by sub-clause (4) of the Act. The argument of the learned counsel for the petitioner is that as soon as the amount is paid or tendered to the landlord or deposited in Court, the Court has to immediate/)' decide the question as to whether the tenant can be given benefit of Section 20, sub-clause (4), of the Act or not implies that the amount admitted by the tenant has only to be paid, tendered or deposited. In my opinion it/s not necessary for the Court immediately as soon as the amount was paid, rendered or deposited to decide this question. The Court has to decide the quest/on of the applicability of Section 20, sub-clause (4), of the Act only after the evidence has been recorded in a case where there is dispute in regard to the rate of rent and then only after determining the rate of rent could further determine whether the benefit can be given or not under sub-clause (4) of the Act. The Court has to record a finding as to what was the rate of rent and then only determine whether the benefit of sub-clause (4) could be given to the tenant or not. The above intention of the Legislature is clear from another provision, namely, Order 15, rule 5 C. P. C. added by the State of U. P, in relation to striking off defence for non-deposit of admitted rent. The rele vant portion of Order 15, rule 5 C. P. C. is as follows : "in any suit by a lessor for the eviction of a lessee from any immov able property after the determination of his lease, and for the recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease, or of compensation for the use or occupation, whether instituted before or after the commencement of the Uttar Pradesh Civil Laws (Amendment) Act, 1972, the defendant shall, at or before the first hearing of the suit, (or in the case of a suit instituted before the commencement of the said Act, the first hearing after such commence ment) deposit the entire amount of rent or compensation for use and occupation, admitted by him to be due, and thereafter throughout the continuance of the suit, deposit regularly the amount of monthly rent, or compensation for use and occupation, due at the rate admitted by him, and in the event of any default in this regard the Court may, unless after considering any representation made by him in that behalf it allows him further time on security being furnished for the amount, refuse to enter tain any defence or, as the case may be, strike off his defence. " Under Order 15, rule 5 C. P. C. the tenant is obliged to deposit only the rent admitted by him to be due. This means that even if the landlord claims a higher amount of rent the tenant is liable to deposit such rent as has been admitted by him in the written statement to be due. Once he deposits that amount his defence cannot be struck off. Under this provision, however, no adjudication is necessary by the Court on the basis of evidence, neither any evidence need be recorded for determining the question whether the defence should be struck or not. If the tenant deposits the admitted rent as stated in the written statement then his defence cannot be struck off. The specific words used in Order 15, rule 5 C. P. C. admitted by him to be due, indicates that in the absence of such words in clause (4) of Section 20 of the Act it was not intended that the tenant was obliged only to deposit the rent at the admitted rate. In my opinion what has to be deposited under sub- clause (4) of Section 20 of the Act is what is legally due from the tenant and then only he can be relieved of the liability for eviction against him. If the landlord claims more amount than what was due it need not be deposited by the tenant. The submission in my opinion made by the learned counsel for the petitioner is not well founded. In the result the petition fails and is accordingly dismissed but in the circumstances of the case parties are directed to bear their own costs. .