ORDER M.P. Mehrotra, J. - This petition arises out of the proceedings under S. 21 of the U. P. Act No. XIII of 1972. 2. The facts, in brief, are these. Suit No. 1703 of 1973 was filed by Manna Lal, father of the respondent No. 3 against the petitioner Kalyani Prasad. It was a landlord and tenant suit wherein the eviction of the tenant, namely, the petitioner was sought by Manna Lal claiming to be the landlord of the accommodation in question. Arrears of rent and damages for use and occupation were also claimed in the suit. The suit was contested by the tenant and a copy of his written statement is Annexure 1 to the petition. In para 11 of the written-statement, it has been said as follows : - "That in order to avoid complications the defendant is depositing the entire amount of rent as claimed together with the costs of the suit, interest and counsel fee." The Court of the Additional Judge Small Cause, Kanpur dismissed the suit by its judgment dated 17-4-1976, a true copy of which is Annexure 2 to the petition. Two issues were framed in the suit as follows : - "1. Whether the defendant is entitled to the benefit of S. 20 (4) of Act XIII of 1972. 2. Relief." 2A. The trial Court held that the tenant was entitled to the benefit of S. 20 (4) of the Act. The contention of the landlord that in view of the proviso to S. 20 (4) of the Act, the tenant was not entitled to the benefit of the said proviso, was rejected, it seems that the evidence had been led by the parties in regard to the proviso as to whether the ingredients of the proviso to S. 20 (4) of the Act were satisfied in the instant case. It appears that the plaintiff was alleging that certain residential quarters had been constructed by the tenant and they had been let out. The trial Court gave a finding in these words : "Thus on the date of institution of the suit the Khaprail quarters were not in vacant state available to the defendant and as such proviso to S. 20 (4) of the Act is not attracted. In the second place this proviso appears to be available for residential portion only. The trial Court gave a finding in these words : "Thus on the date of institution of the suit the Khaprail quarters were not in vacant state available to the defendant and as such proviso to S. 20 (4) of the Act is not attracted. In the second place this proviso appears to be available for residential portion only. The defendant is carrying on a dispensary in the premises in suit." It seems that during pendency of the suit original plaintiff Manna Lal died and his legal representative Kishan Gopal was substituted in his place. 3. Against the aforesaid judgment dated 17-4-1976 of the trial Court, a revision was filed under S. 25 of the Provincial Small Cause Courts Act. The said revision was allowed by the IV Additional District Judge Kanpur by his judgment dated 11-4-1977, a true copy of which is Annexure 3 to the petition. The revisional Court overruled the trial Court in the latter's view that the proviso to S. 20 (4) of the Act was not applicable for the two reasons given by the trial Court. The two reasons as stated above, given by the trial Court, were : 1. The newly built residential quarters were not available to the tenant in a vacant state on the date of the institution of the suit as they had already been let out by the tenant. 2. That the proviso is applicable only to the residential accommodation while the accommodation in suit was a non-residential one. The revisional Court observed : "In my opinion none of the two reasons given by the lower Court is sound." The revisional Court passed the following operative order in the revision : - "Revision petition is allowed, the impugned decree is set aside and the case is remanded back to the lower Court for a fresh decision in accordance with law after deciding the disputed points on merits. The parties shall appear before the lower Court on 26-4-77." After remand the trial Court freeway took up the suit and decreed it for the reliefs claimed including the relief for the eviction of the tenant. A true copy of the judgment of the trial Court dated 5-4-1978 is Annexure 4 to the petition. 4. The parties shall appear before the lower Court on 26-4-77." After remand the trial Court freeway took up the suit and decreed it for the reliefs claimed including the relief for the eviction of the tenant. A true copy of the judgment of the trial Court dated 5-4-1978 is Annexure 4 to the petition. 4. Feeling aggrieved, the tenant filed a revision against the said judgment dated 5-4-1978 and the said revision was dismissed by the revisional Court by its judgment dated 10-11-1979, a true copy of which is Annexure 5 to the petition. A certified copy of the said judgment is also on the record. 5. Feeling aggrieved, the tenant has come up in the instant writ petition, and in support thereof, I have heard Sri S. N. Agarwal, learned counsel for the petitioner. In opposition, Sri K. L. Grover, learned counsel for the landlord respondent No. 3, has made his submissions. 6. Sri S. N. Agarwal. contended that the trial Court and the revisional Court both erred in holding that the tenant was not entitled to the benefit of S. 20 (4) of the Act. Learned counsel further elaborated that the trial Court had clearly held in its first judgment dated 17-4-1976 that the accommodation in dispute was non- residential. This finding was not set aside in the revisional judgment dated 11-4-1977 (Annexure 3). In the subsequent judgment passed after the remand, the trial Court did not set aside the earlier finding as is clear from a copy of the said judgment dated 5-4-1978 (Annexure 4). In the subsequent revisional judgment dated 10-11-1979 l Annexure 5) the aforesaid finding that the accommodation in dispute was non- residential, was not set aside. In these circumstances, the learned counsel contended that in the present petition the controversy should be decided on the basis that the accommodation in dispute was non-residential. Reliance was placed on Sunil Kumar Mukherji v. Kabiraj Bindu Madho Bhattacharaya, (1978 All Rent Cas 74) : (1978 All L J 1382) to contend that it is a settled law that the proviso to S. 20 (4) of the Act will be attracted only to residential accommodation and not to non-residential accommodation. Reliance was placed on Sunil Kumar Mukherji v. Kabiraj Bindu Madho Bhattacharaya, (1978 All Rent Cas 74) : (1978 All L J 1382) to contend that it is a settled law that the proviso to S. 20 (4) of the Act will be attracted only to residential accommodation and not to non-residential accommodation. In this view of the matter, the counsel contended that both the courts below, namely the trial Court and the revisional Court, were wrong in not extending^fie benefit of S. 20 (4) of Act on an erroneous ground that the proviso to the said S. 30 (4) of the Act applied to the facts of the case and, therefore, the tenant was not entitled to the benefit of S. 20 (4) of the Act despite his compliance in depositing the entire amount by the date of first hearing of the suit. 7. Learned counsel for the landlord-respondent, on the other hand, contended that the petitioner was not entitled to contend that the earlier finding recorded by the trial Court in its judgment dated 17-4-1976 survived after the said judgment had been set aside by the revisional Court by its judgment dated 11-4-1977. It was argued that in the pleadings either in the plaint or in the written statement nothing was said whether the accommodation in dispute was residential or non-residential. It was further pointed out that no specific issue had been framed on the said controversy as is clear from the judgment of the trial Court dated 17-4-1976. Sri Grover next contended that in view of the order which was passed under S. 25B by the trial Court on 5-4-1978, where by the defence of the tenant was struck off. the latter was legally debarred from prosecuting his defence and in this view of the matter, he was not entitled to claim the benefit of S. 20 (4) of the Act which benefit had been claimed by him in the written statement (para 11) as has been stated above. The learned counsel for the landlord next submitted that in the earlier revisional order a clear finding had been recorded that the tenant was not entitled to the benefit of S. 20(4) of the Act. Whether the said finding was legally correct or incorrect, will not be relevant at this stage because the said remand order was allowed to become final. Whether the said finding was legally correct or incorrect, will not be relevant at this stage because the said remand order was allowed to become final. It was pointed out that a revision was filed against the said remand order in this Court but the revision was filed beyond the limitation and this Court did not allow the application for condonation of delay. In these circumstances, the said remand order having become final, the same could not be questioned before the Revisional Court below on the second occasion when the revision was filed. The learned counsel contended that the revisional Court in the revision, which was heard and decided on the second occasion, was bound by the earlier revisional order and as such, the revisional Court on the second occasion was bound to reject the claim of the tenant for the benefit of S. 20 (4) of the Act. The learned counsel next submitted that in this writ petition also, it is not open to the tenant petitioner to question the earlier remand order passed by the revisional Court. It was emphasised that in the instant writ petition. I have only to see whether the revisional Court erred in not deciding the case in accordance with the law and whether there is any jurisdictional error in the same or not. It is not open to this Court in this petition to go beyond the said controversy and examine the correctness of the earlier remand order. In any case, the learned counsel submitted that the earlier remand order having not been questioned within the usual period of 90 days (as has been stated above) the aforesaid first revisional order is dated 11-4-1977 and this petition was filed in December, 1979, even if it be open to this Court to allow the said earlier remand order to be questioned in this petition, still, it should not be allowed to be done because of the long delays which have taken place when the said order is being questioned. The learned counsel lastly submitted that in view of the conduct of the petitioner as evident from the judgments of the Courts below and taking into account the broad equities and the circumstances, this Court should refuse to exercise its discretion under Article 226 of the Constitution. 8. The learned counsel lastly submitted that in view of the conduct of the petitioner as evident from the judgments of the Courts below and taking into account the broad equities and the circumstances, this Court should refuse to exercise its discretion under Article 226 of the Constitution. 8. In reply, Sri Agarwal, contended that the remand order in question could not be treated to be final. It was an interlocutory order and in accordance with a practice which is very often followed in this Court, writ petitions against interlocutory orders are very often not entertained on the ground that the petitioner should come after the final order has been passed. The learned counsel contended that if he had sought to come up against the aforesaid remand order, the same difficulty could have been met by the petitioners. His petition could have been dismissed on the ground that it was premature as being directed against an interlocutory order. The learned counsel for the petitioner then submitted that in law a remand order is never a final order and the broad principle laid down under S. 105 (1) of the C.P.C., it is open to a litigant to wait for the passing of the final order and then to question the correctness of the remand order in the proceedings directed against the final order. He contended that this principle was equally applicable to the writ jurisdiction of this Court even as it has been held to be applicable to the revisional jurisdiction of this Court under S. 115, C.P.C. 9. Adverting to the arguments of Sri Grover on S. 35-B C.P.C. Sri Agarwal, contended that the benefit of S. 20 (4) of the U. P. Act XIII of 1972 was claimable by his client on the basis of the deposit made within time and it had nothing to do with the defence of the suit which can have reference to the various clauses from (a) to (g) of S. 20 (2). In other words, according to the learned counsel, defence will mean those contentions set up by the tenant which have relevance and are material to the ingredients of the various clauses from (a) to (g) of S. 20 (2). Sub-s. (4) of S. 20 cannot be deemed to be a defence of such kind. In other words, according to the learned counsel, defence will mean those contentions set up by the tenant which have relevance and are material to the ingredients of the various clauses from (a) to (g) of S. 20 (2). Sub-s. (4) of S. 20 cannot be deemed to be a defence of such kind. It is a mandatory provision which mandates a Court to refuse a decree for eviction in case compliance has been made with the said provision. 10. Rebutting the contention of Sri Grover that in view of the conduct of the petitioner, he was not entitled to any relief in this petition, the learned counsel for the petitioner contended that this conduct was with reference to the proceedings which took place after the remand and it cannot affect the right of a tenant to.get the benefit of S. 20 (4) of the Act when the tenant had deposited the amount at the first hearing of the suit much before the remand order was passed by the revisional Court. 11. Taking into consideration the aforesaid contentions of the learned counsel for the parties, the following questions need to be decided in this case : 1. Whether the finding recorded by the trial Court in its first judgment dated 17-4-1976 that the accommodation in dispute was non-residential could still be taken to survive after the trial Court's said judgment had been set aside and the case had been remanded to the trial Court by the revisional Court and if the said finding survived, was it open to the respondent landlord to question the same in the instant petition? 2. Whether in view of the order passed by the trial Court under S. 35B after the remand of the suit by the revisional Court, it was open to the petitioner. claim the benefit of S. 20 (4) of the U. P. Act No. XIII of 1972? 3. Whether the finding recorded by the revisional Court while remanding the suit to the trial Court can be questioned in the instant petition or the said findings have become res judicata between the parties? 4. Is this case not a fit one for interference by this Court on account of the various circumstances emphasised by the learned counsel for the respondent? 12. I take up the third question first. 13. 4. Is this case not a fit one for interference by this Court on account of the various circumstances emphasised by the learned counsel for the respondent? 12. I take up the third question first. 13. It may be stated that the learned counsel for both the sides placed reliance on a good deal of case law. Sri S. N. Agarwal, learned counsel for the petitioner placed reliance on the following cases 1. AIR 1960 SC 941 Satyadhyan Ghosal v. Smt. Deorajin Debi. 2. AIR 1969 SC 764 , L.R. Ganapathi Thevar v. Sri Navaneethaswaraswami Devasthaham; 3. AIR 1969 SC 560 , Dewaji v. Ganpatlal; 4. AIR 1972 SC 1201 the United Provinces Electric Supply Co. Ltd. v. T. N. Chatterjee: 5. AIR 1974 SC 1702 Gogula Gurumurthy v. Kurimeti Ayyappa. 6. 1969 All WR 182 Uma Shanker v. District Deputy Director of Consolidation: 7. AIR 1964 Orissa 83 Arakhit Padhan v. Iswar Chand Misra; 8. AIR 1960 Pat 47 , Pragosh Singh v. Madan Mohan Prasad; 9. AIR 1978 Delhi 236, Kehar Singh v. Raghunandan Saran Ashok Saran; 10. 1982 (U. P.) RCC 18 Ram Chander v. Smt. Gindauri Debi; 13A. On the other hand, Sri K.L Grover, placed reliance on the following cases : - 1. AIR 1968 SC 1328 , Sobhag Singh v. Jail Singh; 2. AIR 1970 Mad 328 Konappa Mudaliar v. Kusalaru; 3. AIR 1960 SC 941 , Satyadhyan Ghosal v. Smt. Deorajin Debi; 4. 1978 All L J 186. 14. First I take up the cases cited of behalf of the petitioner. 1. Satyadhyan Ghosal v. Smt. Dorajiil Debi, ( AIR 1960 SC 941 ) (supra). Reliance; has been piaeed on this Supreme Court decision from both the sides. Briefly stated the facts in this case were as follows (at pp. 942. 943 of AIR) :- The landlords obtained a decree for ejectment against the tenants. Soon after the decree was made, Calcutta Thika Tenancy Act, 1949 came on the statute. The tenants made an application alleging that they were Thika tenants and prayed that in view of S. 28 of the said Calcutta Thika Tenancy Act, 1949, the decree passed against them in Feb., 1949 should be rescinded. However, on contest the application was rejected. Soon after the decree was made, Calcutta Thika Tenancy Act, 1949 came on the statute. The tenants made an application alleging that they were Thika tenants and prayed that in view of S. 28 of the said Calcutta Thika Tenancy Act, 1949, the decree passed against them in Feb., 1949 should be rescinded. However, on contest the application was rejected. Against the rejection of their application under S. 28 of the said Act, the revision was filed by the tenants under S. 115 C.P.C, It seems that by the time the revision came up for hearing, the Calcutta Thika Tenancy Act had been amended and in the revision the question had to be decided as to the manner in which the amendment of the Act affected, the application of the tenants made prior to the said amendment. The Calcutta High Court held (as observed by the Supreme Court) : 'that in view of the amended definition of the term "Thika tenant" and the evidence which had been recorded by the Munsif, the petitioners must be found to be Thika tenants. Accordingly they allowed the application for revision, set aside the order of the Munsif by which he had dismissed the application under S. 28 and remanded the case to the Munsifs Court for disposal in accordance with law. After remand the Munsif rescinded the decree. The landlords' application under S. 115 of the Code of Civil Procedure against the Munsifs order was rejected by the High Court. The attempt of the landlords to raise before the High Court again the question of the applicability of S. 28 was unsuccessful, the learned Judge who heard the matter in the High Court being of opinion that this question as between these parties was res judicata." Against the aforesaid judgment of the High Court, the appeal was taken to the Supreme Court and the same was decided in the said reported decision. In para 16 of the judgment the legal position was laid down as follows : - "It is clear therefore that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken could be challenged in an appeal from the final decree of order. In para 16 of the judgment the legal position was laid down as follows : - "It is clear therefore that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken could be challenged in an appeal from the final decree of order. A special provision was made as regards orders of remand and that was to the effect that if an appeal lay and still the appeal was not taken the correctness of the order of remand could not later be challenged in any appeal from the final decision. If however an appeal did not lie from the order of remand the correctness thereof could be challenged by an appeal from the final decision as in the cases of other interlocutory orders. The second sub-section did not apply to the Privy Council and can have no application to appeals to the Supreme Court, one reason being that no appeal lay to the Privy Council or lies to the Supreme Court against an order of remand." 2. In L.R. Ganapathi Thevar v. Sri Navanethaswaraswami Devasthanam ( AIR 1969 SC 764 ) (supra), placing reliance on its aforesaid decision, the Supreme Court again emphasised that even if no appeal is filed against a remand order passed by the High Court, still, its correctness can be questioned in an appeal to the Supreme Court against the final judgment of the High Court. The Supreme Court however, laid down (at p. 767) : - "There is hardly any doubt that the trial Court could not have gone into that issue again. It was bound by the judgment of the High Court. It is also clear that that decision was binding on the Bench which heard the appeal. On this question judicial opinion appears to be unanimous and it is a reasonable view to take." 3. In Dewaji v. Ganapatlal ( AIR 1969 SC 560 ) (supra), again following its decision in Satyadhayan Ghosal, ( AIR 1960 SC 941 ) (supra), it was laid down that in a Letters Patent Appeal against the decision of a single Judge, it was open to the Bench hearing the Letters Patent Appeal to decide all points including those which had been decided by the single Judge in an interlocutory order. The interlocutory order passed by the single Judge in the said case was an order whereby the records under proceedings in the case were directed to be sent to the Revenue Officer who was directed to decide certain controversy. It was further laid down that the Revenue Officer's decision would be subject to the usual course of appeal or revision and when the controversy was finally decided by the highest Revenue Authority, the latter's finding was to be communicated to the High Court. Till this happened the hearing of the appeal in the High Court was directed to remain stayed. 4. In The United Provinces Electric Supply Co. Ltd. v. T. N. Chatterjee, ( AIR 1972 SC 1201 ) (supra), the Supreme Court again placed reliance on its decision in Satyadhan Ghosal (supra). The decision in AIR 1967 SC 1182 , Management of Northern Railway Co-operative Society Ltd. v. Industrial Tribunal Rajasthan, Jaipur was distinguished. It was laid down as follows (at pp. 1209, 1210) : - "The present case is clearly distinguishable inasmuch as the order made by the High Court was not final and a remand had been directed presumably under Article 227 of the Constitution. That order in fact did not finally terminate any proceedings at all. The proceedings were terminated only by the award against which the present appeal has been brought by special leave. We are unable to see how the decision in the aforesaid case, ( AIR 1967 SC 1182 ), can afford any assistance to the respondents before us. Indeed the case which is more apposite is Satyadhyan Ghosal v. Smt. Dorajin Devi, ( AIR 1960 SC 941 ). There an order of remand had been made by the High Court while exercising powers under S. 115 of the Civil P.C. It was observed, after referring to the various decisions of the Privy Council, that the order of remand was interlocutory and did not purport to dispose of the case. A party is not bound to appeal against every interlocutory order which is a step in the procedure that leads up to a final decision or award..................... we are unable, therefore, to accede to the contention that the rule of res judicata could be invoked by the respondent in the present case." 5. A party is not bound to appeal against every interlocutory order which is a step in the procedure that leads up to a final decision or award..................... we are unable, therefore, to accede to the contention that the rule of res judicata could be invoked by the respondent in the present case." 5. In Gogula Gurmurthy v. Kurimeti Ayyappa ( AIR 1974 SC 1702 ) (supra), it was laid down as follows (at p. 1703) : - "We consider that when a finding is called for on the basis of certain issues framed by the Appellate Court the appeal is not disposed of either in whole or in part. Therefore, the parties cannot be barred from arguing the whole appeal after the findings are received from the Court of first instance. The said observations were made with reference to O. 41, R. 25, C.P.C. Now I take up the cases decided by various High Courts on which reliance has been placed by the learned counsel for the petitioner. 6. 1969 All WR 182 Uma Shanker v. District Deputy Director of Consolidation (supra). Placing reliance on two unreported decisions, the learned Judge laid down that a writ petition under Article 226 of the Constitution would not be maintainable where it is directed against an order of remand which would not be a final order. The controversy was decided with reference to the provisions of U. P. Consolidation of Holdings Act. 7. In Arakhit Pradhan v. Iswar Chand Misra (AIR 1964 Orissa 83) (supra), a remand order was passed in execution proceedings. It was held that even though the order was passed in the proceedings under S. 47, C.P.C., as it did not conclusively determine the rights of the parties, therefore, no appeal lay against such an order and its correctness could be questioned in the appeal against the final order which was passed by the execution court after remand. Reliance was placed on AIR 1960 SC 941 (supra). 8. In Pragash Singh v. Madan Mohan Prasad ( AIR 1960 Pat 47 ) (supra), it was held that where a remand order was not passed under O. 41 R. 23 C.P.C., it was not appealable. The said remand order could be questioned in an appeal against the decree passed after remand. 9. 8. In Pragash Singh v. Madan Mohan Prasad ( AIR 1960 Pat 47 ) (supra), it was held that where a remand order was not passed under O. 41 R. 23 C.P.C., it was not appealable. The said remand order could be questioned in an appeal against the decree passed after remand. 9. In Kehar Singh v. Raghunandan Saran Ashok Saran (AIR 1978 Delhi 236) (supra), the first para of the head-note is as follows : - "An interlocutory order passed by the rent controller under S. 15 (1) directing the tenant to deposit the arrears of rent in spite of his plea as to validity of notice of demand and disputing the quantum of his liability, if not appealed against by the tenant can still be challenged by him in the appeal filed against the final order of eviction passed against him." 10. In Ram Chander v. Smt. Gindauri Devi (1982 (U. P.) RCC 18) (supra), the Hon'ble Chief Justice has laid down that as the revisional jurisdiction is a part of the appellate jurisdiction, therefore, S. 105(1) C.P.C. would be equally applicable in a case of revision also. The learned Chief Justice observed as follows : - "S. 105 C.P.C, authorises a Court of appeal to look into any error, defect or irregularity in any order affecting the decision of the case. The order striking off the defence undoubtedly affected the decision of the case on merits. Hence the Court while acting as the Court of appeal could look into the validity of that order. It is well settled that revisional jurisdiction is part of the appellate jurisdiction. (See Shankar Ram Chandra Abhyankar v. Krishnaji Dattatraya Bapat, AIR 1970 SC 1 ). Hence S. 105 was equally available to this Court while disposing of the revision." It should be seen that this case did not deal with any order of remand. 15. Now I take up the cases on which reliance has been placed by Sri K. L. Grover. 1. In Sobhag Singh v. Jai Singh (AIR.1968 SC 1328) (supra), it has been laid down as follow (at pp. 1331. 15. Now I take up the cases on which reliance has been placed by Sri K. L. Grover. 1. In Sobhag Singh v. Jai Singh (AIR.1968 SC 1328) (supra), it has been laid down as follow (at pp. 1331. 1332) : - "Counsel for the appellant contended that the order passed by the High Court was an interlocutory order remanding the proceedings to the Board of Revenue, and on that account the decision of the High Court will not operate as res judicata either before the Board of Revenue or in this Court. We are unable to accept that contention. Against the order of the Board of Revenue rejecting the claim of Jai Singh to be recognised as the adopted son of Sabhal Singh, a writ petition was moved in the High Court and a prayer for quashing that order was made. The High Court dealt with the dispute on merits and held that the order of the Board of Revenue holding that because of the Matmi Rules the adoption of Jai Singh by Sabhal Singh without the previous sanction of the Ruler could not be recognised for the purpose of determining the succession to the Jagir was erroneous. The High Court did in making the final order direct the Tribunal to decide the case in accordance with the law and in the light f the observations made in the judgment, direction was, in our judgment, a surplusage. The High Court issued a writ in the nature of certiorari quashing the order of the Tribunal. It was unnecessary thereafter to direct or advise the Board of Revenue to perform its statutory duty of decide the dispute according to law. The Board of Revenue had to decide the dispute in accordance with the law declared by the High Court. All questions which had been expressly decided by the High Court on contest between the parties and other questions which must be deemed by necessary implication to have been decided were res judicata and could not be reopened before the Board of Revenue. In this appeal it is therefore, not open to the appellant to contend that the decision of the High Court on th6 questions decided in the writ petition was erroneous. It is unfortunate that the application for certificate to appeal to this Court filed by Sobhag Singh was erroneously rejected by the High Court. In this appeal it is therefore, not open to the appellant to contend that the decision of the High Court on th6 questions decided in the writ petition was erroneous. It is unfortunate that the application for certificate to appeal to this Court filed by Sobhag Singh was erroneously rejected by the High Court. But that does not affect the binding character of the judgment of the High Court between the parties. Unless the decision of the High Court on those questions was set aside by appropriate proceeding in this Court, the judgment must be held binding between the parties. It is, therefore, not open to the appellant to contend, that the right of Jai Singh as the adopted son to the Jagir had to be decided otherwise than in accordance with the personal law of Sabhal Singh. It is undisputed that according to the personal law applicable to Sabhal Singh, Jai Singh could have been adopted by him." - 2. In Konappa Mudaliar v. Kusalaru ( AIR 1970 Mad 328 ) (supra), the head-notes are as follows : - "It is not open to the lower Court, when an appellate Court remands the case to it, to do anything but to carry out the terms of the remand even if it considers that the order of remand was not in accordance with law. It cannot apply what it might consider the correct position of the law. When a case comes back to the High Court after disposal by the lower appellate Court after remand, the High Court cannot take into consideration a later decision of the Supreme Court and go back on its own earlier order of remand passed by it on a view that was dissented from by it on a view that as dissented from by the Supreme Court in a different case. The decision of the High Court in the order or remand operates as constructive res judicata." 16. In Pritam Singh v. Asstt. Director of Consolidation (1978 All L J 186) (supra), a Division Bench of this Court (of which was a member) discussed various decided cases and laid down 14 propositions on the basis of the said decided cases. The said propositions have been set out in para 46 of the reported decision. The Division Bench had to deal with the controversy with reference to the provisions of U. P. Consolidation of Holdings Act. The said propositions have been set out in para 46 of the reported decision. The Division Bench had to deal with the controversy with reference to the provisions of U. P. Consolidation of Holdings Act. The controversy in brief, was whether if a remand order passed by the appellate Court, namely, the Settlement Officer (Consolidation), was not taken in revision to the Deputy Director (Consolidation) under S. 48 of the said Act, then was it open to a party to the dispute to question the correctness of the said remand order in the revision which was filed against the orders passed by the Consolidation Officer and thereafter by the Settlement Officer (Consolidation) after remand. The Division Bench held that it was not open to question the correctness of the remand order in such a revision when earlier no revision had been filed against the remand order itself. 17. Sri Grover has also placed reliance on Satyadhyan Ghosal v. Smt. Deorajin Debi ( AIR 1960 SC 941 ) (supra), the case on which reliance has also been placed by the learned counsel for the petitioner, and I have already discussed it above. 18. It seems to me that on this point the contention of Sri S.N. Agarwal is substantially correct. As the aforesaid case law will disclose that except for AIR 1968 SC 1328 , (supra) which may apparently look to have laid down a contrary proposition, throughout the Supreme Court has taken the view as laid down in AIR 1960 SC 941 (supra), namely, that a remand order is an interlocutory order and the doctrine of res judicata does not apply so as to shut out a scrutiny of such order in a higher Court when the case goes to such higher Court against the final order passed by the Courts below after the remand. In AIR 1968 SC 1328 (supra) even though the order was one of remand Shah, J. emphasised that the further directions given to the Board of Revenue in the remand order were in the nature of surplusages. The Supreme Court seems to have been greatly influenced by the said aspect of the matter. It virtually held that the order passed by the High Court was apparently a remand order but substantially it was a final order having decided the controversy between the parties. The Supreme Court seems to have been greatly influenced by the said aspect of the matter. It virtually held that the order passed by the High Court was apparently a remand order but substantially it was a final order having decided the controversy between the parties. It should be seen that after the said pronouncement, the Supreme Court made several pronouncements which have been discussed above and which clearly followed the propositions laid down in AIR 1960 SC 941 . In my view, therefore, it will be reasonable to hold that the Supreme Court did not clearly intend to lay down a contrary proposition in AIR 1968 SC 1328 . However, even if one were to go to the extent of holding that the said pronouncement laid down a contrary pronouncement, still, the subsequent pronouncements of the Supreme Court will prevail over the said pronouncement on the basis of the law laid down in a Full Bench decision reported in Gopal Kishan v. 5th Addl. District Judge, Kanpur, (1981 All Rent Cas 336) : ( AIR 1981 All 300 ). However, I admit that the position is somewhat confused so far as the proceedings in the writ jurisdiction are concerned. The position in regular appeals arising out of suits is governed by S. 105 C.P.C. Sub-secs. (1) and (2) of the said section can be said to be last of a clear scheme which lays down that various interlocutory orders passed in a suit shall not be taken up in appeal to the higher Court, unless an appeal is prescribed. The appeals against orders are prescribed under 0.43 C.P.C. However, irrespective of whether the order is appealable or not and whether an appeal has been taken out against such an interlocutory order, it has been laid down that when the suit ends in a decree then "any error, defect or irregularity in any order, affecting the decision of the case, may be set forth a ground of objection in the memorandum of appeal". However, a remand order which is treated as an interlocutory order from which an appeal lies, shall not be allowed to be questioned in the decree if earlier no appeal was filed against such remand order, The question is, will ( this scheme incorporated under S. 105 C.P.C. be equally applicable to the writ jurisdiction of this Court under Article 226 of the Constitution? The writ jurisdiction is obviously not an appellate jurisdiction and there are fundamental distinctions which distinguish the two jurisdictions namely; the appellate jurisdiction and the writ jurisdiction. Appeal is as a matter of right. In the writ jurisdiction no petitioner can claim interference as a matter of right. It is open to the writ Court to refuse to grant relief even though legally the petitioner may be. held entitled to the same if the broad equities of the case warrant denial of the relief to the petitioner. Sri S.N. Agarwal, however, made an important point by pointing out that very often this Court in its writ jurisdiction refuses to entertain a petition under Article 226 where it is directed against a remand order on the ground that the same is interlocutory in nature and the petitioner should come up in the writ against the final order to be passed by the 'authorities below. He has placed reliance on 'Uma Shanker v. District Deputy Director of Consolidation (1969 All W R 182) (supra) which has already been noticed earlier. There is substance in the contention that it will not be conducive to justice if this Court on the one hand refused to entertain a petition against a remand order on the ground that the same is interlocutory and on the other hand, in the petition against the (final order passed after remand it should be ;held that the-correctness of the earlier remand order cannot be questioned. This approach will be. needless to say-inconsistent and contradictory. In this view of the matter, apart from the special facts of this case, I hold that but for the special provisions contained in special Statutes, this Court will not normally disentitle a petitioner from questioning a remand order even if no writ petition was filed against the same, when a petition is filed in this Court against the final order passed after remand, 19. I take up now the second point of controversy which needs decision in this petition. Sri K. L. Grover, learned counsel for the landlord respondent, stoutly contended that in view of the bar laid down in S. 35B C.P.C. it was not open to the tenant to claim the benefit of S. 20 (4) of U. P. Act No. XIII of 1972. S. 35B is reproduced below : - "35B. Sri K. L. Grover, learned counsel for the landlord respondent, stoutly contended that in view of the bar laid down in S. 35B C.P.C. it was not open to the tenant to claim the benefit of S. 20 (4) of U. P. Act No. XIII of 1972. S. 35B is reproduced below : - "35B. Costs for causing delay.- (1) If, any date fixed for the hearing of a suit or for taking any step therein, a party to the suit (a) fails to take the step which he was required by or under this Code to take on that date, or (b) obtains an adjournment for taking such step or for producing evidence or on any other ground, the Court, may, for reasons to be recorded, make an order requiring such party .to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect'of the expenses incurred by him in attending the Court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of - (a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs, (b) the defence by the defendant, where the defendant was ordered to pay such costs. Explanation.- Where separate defences have been raised by the defendants or groups of defendants, payment of such costs shall be a condition precedent to the further prosecution of the defence by such defendants or groups of defendants as have been ordered by the Court to pay such costs. (2) The costs, ordered to be paid under sub-section (1), shall not, if paid, be included in the costs awarded in the decree passed in the suit, but, if such costs are not paid, a separate order shall be drawn up indicating the amount of such costs and the names and addresses of the persons by whom such costs are payable and the order so drawn up shall be executable against such persons." 20. The expression, which has been used in clause (h) is 'defence'. What is exactly meant by this expression has to be considered. The expression, which has been used in clause (h) is 'defence'. What is exactly meant by this expression has to be considered. In my view, taking into consideration the object for which S. 35B was newly added by the Central Amendment Act No. 104 of 1976, it will be reasonable to think that the legislature wanted that the defendant must pay the adjournment costs before he is allowed to set up any plea in defence against the plaintiffs claim. On pain of his defence being shut out, the defendant is compelled to pay the adjournment costs. There seems to be no good reason for treating S. 20 (4) as not partaking the nature of defence in a landlord and tenant suit under S. 20 of the U. P. Act No. XIII of 1972. Indeed, very often in a suit under S. 20 (2) (a) for the eviction of a tenant, the tenant may have no other defence except a defence based on his compliance with sub-sec. (4) of S. 20 of the Act. The said provision provides the tenant a defence against the relief sought by the landlord for his eviction. It is true that very often the expression 'defence' is used as equivalent to the defence set up in a written statement by the defendant. Under O. VIII R. 1 C.P.C. it is laid down as follows : "Written statement.- (1) The defendant shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence." In O. XV, R. 5 C.P.C. a provision has been made for striking off the defence. It may be contended that what is meant is striking off the written statement of the defendant containing his defence. However, these provisions cannot be construed, so as to lay down that a defence of the defendant is confined to his written statement. It should be seen that before the amendment of O. VIII R. 1 C.P.C. by the Central Amendment Act No. 104 of 1976, it was optional for a defendant to file his written statement. Of course, the provision was that the Court could compel a defendant to file his written statement, and then he was bound to comply with the Court's directions. Of course, the provision was that the Court could compel a defendant to file his written statement, and then he was bound to comply with the Court's directions. After the aforesaid amendment, it has been laid down that the defendant shall, at or before the first hearing or within such time as the Court may permit him, present the written statement of his defence. However, despite this charge, I apprehend that even now the correct position in law would be that a defendant may without filling a written statement address the Court that the plaintiffs suit is per se not maintainable on account of certain legal infirmities, for example, clear want of jurisdiction or some such other plea. I concede that this proposition of mine may be treated as highly controversial and it may be contended that no defence, apart from that set out in the written statement of the defendant, can be taken into consideration by the Court. However, even if I may be wrong in my thinking on this point. I think that under S. 35B the language issued is different from that used in the aforesaid provisions. A bar is placed in the way of the defendant from further prosecuting his defence. It is not necessary to treat the defence as confined only to written statement. Any plea which the defendant is setting up with a view to defeat the plaintiffs claim is, in my opinion, defence. The learned counsel for the petitioner contended that S. 20 (4) has been held to be mandatory and placed reliance on Sumer Chand v. Atma Ram, (1979 All WC 301) : (1979 All LJ 1359), where a learned Judge of this Court held that the provisions of sub-sec. (4) of S. 20 are mandatory in character in spite of the use of the word 'may' therein. In my view, the said aspect of the matter is hardly relevant. The fact that a provision is held to be mandatory, does not lead to the conclusion that such a provision cannot be the subject-matter of defence. Very often pleas in defence are based on mandatory provisions of law. The real controversy is not whether the said provision is mandatory or is not. but whether a plea based thereon could be held to be a defence barred under S. 35B. C. P.C. ' 21. Very often pleas in defence are based on mandatory provisions of law. The real controversy is not whether the said provision is mandatory or is not. but whether a plea based thereon could be held to be a defence barred under S. 35B. C. P.C. ' 21. There is another aspect of the matter which may also be usefully examined in this context. A plea under S. 20 (4) is not always a pure plea based on law. Very often such plea may require evidence to be led by the parties. In particular, the proviso to S. 20 (4) of the Act can only be considered on the basis of the evidence of the parties. It is true that such evidence may not be evidence at the trial but it may be evidence with reference to the plea under S. 20 (4) of the Act. When parties lead evidence in reference to a plea under S. 20 (4), the Court has to examine such evidence and then to decide whether the tenant should be given benefit of S. 20 (4). I do not think that if such an exercise is done by a Court, it can be said that the defendant is not setting up a defence when he sets up a plea under S. 20 (4) of the Act. I shall take an example to further elucidate the point which I am seeking to make. Suppose it be held that without filing a written statement, it is open to a tenant to set up a plea of compliance with the provision contained in S. 20 (4) of the Act. He moves an application seeking the benefit of this provision. If the landlord contests the said application and claims that the proviso to S. 20 (4) is applicable, then it will be inevitable for the Court to record evidence, if during these proceedings the defendant-tenant applies for adjournment to lead evidence and the said prayer is allowed by the trial Court on payment of adjournment costs to be paid on or before the date next following the date of such order, then if such costs are not paid on the next date, will the Court be not in a position to invoke S. 35B on the ground that the plea of the defendant based on S. 20 (4) of the Act does not amount to a defence under S. 35B? If were to accept the contention of the learned counsel for the petitioner then it must necessarily be held that in a situation of this kind when adjournment costs have been allowed against the defendant-tenant if such costs are not paid before the next date, still the Court will not be in a position to debar the tenant from prosecuting his defence on the ground that the plea under S. 20 (4) of the Act is not "defence" in terms of S. 35B. In my view, this interpretation will defeat the object for which S. 35B was enacted by the legislature, namely, to compel the payment of adjournment costs on penalty that the defendant will be debarred from prosecuting his defence. The Court will be justified in not allowing such a defendant-tenant to prosecute his plea in defence based on S. 20 (4) of the Act if adjournment costs are not paid in the said proceedings. 22. In the facts of the instant case, the position is more simple if I may say so. The plea based on S. 20 (4) was a plea set up in the written statement of the defendant-tenant. On the basis of the said plea, a specific issue was framed by the trial Court being issue No. 1 as follows ; "Whether the defendant is entitled to the benefit of S. 20 (4) of Act XIII of 1972." Therefore, there can be little doubt that even if one were to accept the contention of Sri Agarwal, that it is possible for a tenant to raise the plea under S. 20 (4) of the Act without filing a written statement, still, in the facts of the instant case this was not so. The plea was raised in the written statement [and was, therefore, undoubtedly a part of the tenant's defence. When the tenant failed [to pay the adjournment costs then he was debarred from claiming the benefit of 'S. 20(4) of the Act which benefit he had claimed in his defence set out in his written statement. Therefore, I accept this contention of Sri Grover and hold accordingly. 23. It is really not necessary to discuss the other two points in view of the aforesaid discussion. However, I may briefly indicate my views on the same. Therefore, I accept this contention of Sri Grover and hold accordingly. 23. It is really not necessary to discuss the other two points in view of the aforesaid discussion. However, I may briefly indicate my views on the same. So far as the question as to whether the finding regarding the accommodation in dispute being non-residential survived or not after the remand order, I should like to say that the same will normally be answered with reference to the nature of the remand order and directions given therein. However, there is one aspect of the case which is such that the aforesaid finding recorded initially by the trial Court cannot be taken into consideration after the defendant had been debarred from prosecuting his defence, under S.,35B. It should be seen that the said finding was based on the evidence of the parties led with reference to issue No. 1, namely, whether the defendant was entitled to the benefit of S. 20 (4) of the Act. When the said plea itself was legally not open to the defendant tenant as a result of S. 35B in my opinion, the finding recorded on the basis of the evidence in the said plea could not be taken into consideration by the trial Court. Therefore, whether after the remand order the said finding still survived or not, is not necessary to be decided. 24. So far as the last point about the conduct of the petitioner is concerned, though confess that from the impugned revisional judgment felt that the petitioner was guilty of delaying the proceedings in an extraordinary manner, still, it must be admitted that on the basis of the subsequent conduct however regrettable it may be, it would not be proper and just to deny the petitioner a benefit to which he was entitled at a time when there was no laches on his part. It should be seen that the amount under S. 20 (4) of the Act had been deposited much earlier and the subsequent delays which took place on account of the petitioner would not be sufficient, in my view, to disentitle him to a relief to which he was entitled in law. It should be seen that the amount under S. 20 (4) of the Act had been deposited much earlier and the subsequent delays which took place on account of the petitioner would not be sufficient, in my view, to disentitle him to a relief to which he was entitled in law. I have also taken into consideration that in the first revisional order dated 11-4-1977 the remand was directed for a limited purpose as is clear from the following statement occurring in the said order : - "The defendant respondent's counsel has contended that in his written statement he has raised several other pleas also and he should be given an opportunity to contest the suit on this ground alone. It is quite just and proper and so the case has to be remanded back." However, even if the remand was made for the said purpose, still, since I have held that the petitioner could not and should not be debarred from questioning the remand order in the subsequent petition against the final order passed after remand, therefore, I cannot hold that the petitioner in view of the aforesaid observations should not be allowed to question the correctness of the finding recorded by the authorities below that he was not entitled to the benefit of S. 20 (4) of the Act. I would have allowed him to question the same but for my finding that he was debarred from doing so on account of the provisions contained in S. 35B. C.P.C. 25. This petition accordingly fails and is dismissed but there will be no order as to costs.