Ram Kishan v. District Judge, Banda — 1976 DIGILAW 574 (ALL)

JUDGMENT N.D. Ojha, J. 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 subsection (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. 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. 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. Incometax Officer, Bareilly A.IR. 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. Incometax 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. On merit, it was urged by counsel for the tenant that the tenant had deposed on the firt date of hearing the entire amount contemplated by subsection (4) of section 20 of the Act. Indeed, even though the rent payable by him was at the rate of Rs. 14/ per month, the tenant deposited the rent at the rate of Rs. 21/ per month just for the sake of abundant caution. According to counsel for the petitioner, the mere fact that the tenant also brought to the notice, of the court the correct factual position that the landlord had made an erroneous claim that the rent was Rs. 21/per month and that the rent payable was at the rate of Rs. 14/ per month only, it cannot be said that the deposit as made by the tenant was not an unconditional deposit, particularly when the finding recorded by the two courts below concurrently is that the case set up by the tenant was correct. 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 subsection (2) of section 20 of the Act in case he makes the requisite deposit contemplated by the said subsection (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 subsection (4) is of the rent payable by the tenant. 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 subsection (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). It was then urged by counsel for the landlord that section 20 (4) as it stood on the relevant date contemplated either payment or tender of the rent to the landlord; it did not contemplate any deposit of rent in court. So far as this point is concerned, it will suffice to refer to section 13 of U. P. Act 28 of 1976. Certain provisions of the U. P. Urban Building (Regulation of Letting, Rent and Eviction) Act have been amended. Section 13 of the Act, inter alia, provides that in subsection (4) of section 20 of the principel Act for the words tenders of the landlord the words tenders to the landlord or deposits in court shall be substituted and be deemed always to have been substituted. In view of this amendment in subsection (4) of section 20, which has been made retrospective in its operation, the deposit made by the tenant would amount to the compliance of the requirements of the section 20 (4). This submission also, therefore, has no substance. In view of this amendment in subsection (4) of section 20, which has been made retrospective in its operation, the deposit made by the tenant would amount to the compliance of the requirements of the section 20 (4). This submission also, therefore, has no substance. Lastly, it was urged by counsel for the landlord that subsection (4) of section 20 was not applicable in view of the proviso to the said subsection. The said proviso is to the effect that nothing in this subsection shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state or has" not vacated after acquisition, any residential building in the same city, municipality, notified area or town area. Firstly, a perusal of the orders of the Judge of the Court of a Small Causes and of the District Judge indicates that arguments on the basis of the proviso were not addressed before these two officers. Secondly even in this court there is no assertion that the tenant or any member of his family had built or had otherwise acquired in a vacant state or has got vacated after acquisition any residential building in the city, municipality, notified area or town area after the coming into force of U. P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972. In this view of the matter, the tenant cannot be deprived of the benefit, of section 20 (4) on account of its proviso. The writ petition, therefore, deserves to be allowed. Coming to the Civil revision, it would be seen that the finding recorded by the Judge of the Court of Small Causes and the District Judge concurrently is that the rate of rent was Rs. 14/ per month and not Rs. 21/ per month. This is a finding of fact based on appraisal of evidence and cannot be challenged in a civil revision under section 115, C.P.C. It was urged by counsel for the landlord that the said finding was based on a misreading of the statement made by the landlord and his withess Goverdhan Nath. These two statements have been placed before me and I am unable to agree that the orders passed by the two courts below are vitiated by any misreading of these statements. These two statements have been placed before me and I am unable to agree that the orders passed by the two courts below are vitiated by any misreading of these statements. The submission that the finding in regard to the rate of rent is vitiated on account of misreading of evidence, therefore, cannot be accepted. In so far as the claim that the landlord was entitled to damage at the rate of Rs. 3/ per day is concerned. Since the landlord has been found not be entitled to the re'ief of ejectment, in view of my finding given in the writ petition, no question of awarding any damages to arises. He is now entitled to rent at the rate of Rs. 14/ per month. He will be entitled to withdraw moneys that may have been deposited in the court below by the tenant treating the rate of rent to be Rs. 14/ per month. The revision accordingly deserves to be dismissed. In view of the foregofng discussion, writ petition No. 6654 of 1974 succeeds and is allowed and the order of the District Judge dated 2Lst October, Iv74, is quashed. Civil Revision No. 131 of 1975 is dismissed. In the circumstances of the case, the parties will bear their own costs.