RAM KISHAN Vs. DISTRICT JUDGE, BANDA AND OTHERS

JUDGEMENT

(1.) BY an order dated 20th July, 1976, passed in it, Writ Petition No. 6654 of 1974 had been directed to be listed along with Civil Revision No. 131 of 1975 after three weeks. The writ Petition and the Civil Revision aforesaid have accordingly been listed today for hearing. Since the same order passed by the District Judge is challenged in the writ petition as well as the civil revision, both of them can be conveniently disposed of together. Shyam Sunder is the landlord of an accommodation of which Ram Kishun is the tenant. A suit was filed by Shyam Sunder for ejectment of Ram Kishun in the court of Small Causes asserting that Ram Kishun was a tenant on a rrronthly rent of Rs. 21/- and that he was in arrears of rent and had not cleared it off in spite of a notice of demand having been served on him. On the first date of hearing fixed in the suit, the tenant made a deposit as contemplated by section 20 (4) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act and urged on its basis that he was entitled to be relieved against the liability for eviction. The deposit of rent had been made at the rate of Rs 21/- per month as claimed by the landlord. The tenant, however, asserted that the rent payable by him was at the rate of Rs. 14/ per month only and not Rs. 21/-. The Judge of the Court of Small Causes after taking the evidence produced by the parties recorded a finding that the monthly rent payable by the tenant was Rs. 14/- and Rs. 21/-. He also held that the tenant had made the necessary deposit as contemplated by sub-section (4) of section 20 and consequently relieved him against his liability for eviction. A revision under section 25 of the Provincial Small Causes Court Act was filed by the landlord before the District Judge. The District Judge agreed with the finding recorded by the trial court that the monthly rate of rent was Rs. 14/-. He however, took the view that since the tenant had challenged the rate of rent, it could not be said that the deposit made by him under section 20 (4) was an unconditional deposit. On this view, he allowed the revision on 21st October, 1974, and passed a decree for ejectment of the tenant and damages for use and occupation also. The tenant filed Writ Petition No. 6654 of 1974 with a prayer to quash the order of the District Judge dated 21st October, 1974. The landlord preferred Civil Revision No. 131 of 1975, challenging the finding of the District Judge that the rate of rent was Rs. 14/- per month and not Rs. 21/- per month, in the revi­sion it has also been asserted that the damages for use and occupation should have been granted at the rate of Rs. 3/- per day.

(2.) A preliminary objection was raised on behalf of the landlord that against the order passed by the District Judge allowing the revision under section 25 of the Provincial Small Cause Court Act, a revision under section 115, C.P.C. was maintainable and in this view of the matter, the tenant is not entitled to any relief under Article 226 of the Constitution. Reliance in support of the submission that a revision was maintainable was placed on the decision of a Division Bench of this Court in Smt. Simla Rani Kohil v. Bandu Motor Finance Private Ltu. 1971 A.LJ. 901. In view of the above Division Bench decision, there can be no manner of doubt that a revision against the order of the District Judge was maintainable in this Court under section 115 C.P.C. The question however, remains whether at this stage, the writ petition is liable to be dismissed on this ground. The impugned order of the District Judge, as soon above, is dated 21st October, 1974. The Writ Petition was filed and admitted on 30th October, 1974, that is only about nine days there­after and much within the period of limitation prescribed for riling a civil revision. The Court fees payable on a memorandum of Civil revi­sion is Rs. 10/- whereas the court fee which has been paid in the writ petition is of Rs. 100/-. Further in Hirdai Narain v. Income-tax Officer, Bareilly A.IR. 1971 Supreme Court page 33, it was held that if the petitioner in place of availing of an alterna'ive statutory remedy filed a writ petition and the writ petition is entertained, the High Court would not be justified in dismissing the writ petition as not maintainable subsequently on the ground of the existence of an alternative remedy. In this view of the matter, I find no substance in the preliminary objection.

(3.) HAVING heard counsel for the parties, I am of opinion that there is substance in this submission. The purpose lying behird section 20 (4) is to relieve the tenant against the liability for eviction in the suit filed for his ejectment on the ground mentioned in clause (a) of sub-section (2) of section 20 of the Act in case he makes the requisite deposit contem­plated by the said sub-section (4). It is no where stated in section 20 (4) that the tenant must deposit rent at the rate claimed by the landlord. The deposit as contemplated by sub-section (4) is of the rent payable by the tenant. The landlord cannot deprive the tenant of the benefit of section 20 (4) just by making a fantastic claim in regard to the rate of rent. Of course, if ulitmately the finding recorded by the courts below had been that the case set up by the tenant was wrong and the monthly rent was Rs. 21/- per month, the position might have been different. Further, after making the deposit, the tenant does not appear to have made any application that the money that had been deposited may not be paid over to the landlord. At any rate, the tenant was all along agreeable in the amount deposited being paid over to the landlord calculating the rent of the rate of Rs. 14/-per month. To this extent the deposit made by the tenant was certainly without any condition attached to it. The District Judge accordingly committed a manifest error of law in taking the view that the tenant was not entitled to the benefit of section 20 (4).