Judgment S.P Mehrotra, J.: The petitioner has filed this writ petition under Article 226 of the Constitution of India, inter-alia, praying for quashing the order dated 24.9.2002 passed by the learned Additional District Judge, Court No. 9, Varanasi (Annexure-10 to the writ petition) and the order dated 11.12.2000 passed by the learned Judge, Small Cause Court, Varanasi (Annexure 8 to the writ petition). 2. The dispute relates to an accommodation consisting of one room on the ground floor towards North Western Corner of House No. Ck 48/5-A, Mohalla Harha, Raja Darwaja, Varanasi City. The said accommodation has, hereinafter, been referred to as “the disputed accommodation”. 3. The petitioner has filed, in this writ petition, the following supplementary affidavits : (i) Supplementary affidavit sworn on 8th January, 2003. (ii) Supplementary affidavit sworn on 4th February, 2003. (iii) Supplementary affidavit sworn on 23rd February, 2003. 4. An affidavit sworn by Hanuman Das Rastogi on 23rd February, 2003 has been filed on behalf of the respondent. 5. In reply to the said affidavit sworn on 23rd February, 2003 filed on behalf of the respondent, the petitioner has filed a counter-affidavit sworn on 25th February, 2003. 6. From the allegations made in the writ petition and the affidavits filed on record, it appears that the respondent filed a suit against the petitioner for ejectment, arrears of rent, mesne profits etc. in respect of the disputed accommodation. It was, inter-alia, alleged by the respondent as plaintiff in the said suit that the respondent purchased house No. Ck 48/5-A from Gopal Prasad, son of late Moti Lal through a sale deed dated 23rd February, 1994, and since then, the respondent was owner and landlady in possession of the said house; and that the petitioner (defendant) was tenant in the disputed accommodation. 7. 7. It was, inter-alia, further alleged by the respondent in the said suit that the respondent along with her husband just after purchase of the said house on the same day in presence of previous owner Gopal Prasad informed the petitioner (defendant) and other tenants residing in the said house that she had purchased the said house for her personal use and residence and asked them to vacate the said house; and that the petitioner (defendant) including other tenants gave assurance to the respondent (plaintiff) and her husband that very soon within one or two months the said house would be vacated; and that it was also assured that during the period, the petitioner (defendant) would pay Rs. 100/- per month as rent to the respondent (plaintiff) or her husband. It was, inter-alia, further alleged by the respondent (plaintiff) in the said suit that even after expiry of two months the petitioner (defendant) neither vacated the disputed accommodation nor paid any amount of rent due and again requested for two or three months' time to vacate the disputed accommodation and for payment of rent due at the rate of Rs. 100/- per month. It was, inter-alia, further alleged by the respondent (plaintiff) in the said suit that from the date of purchase of the said house No. Ck 48/5-A by respondent (plaintiff) ‘upto now’ the petitioner (defendant) had not paid any amount of rent due to the respondent (plaintiff) inspite of several requests and demands made by the respondent (plaintiff) and her husband in respect of the disputed accommodation. It was, inter-alia, further alleged by the respondent (plaintiff) in the said suit that the respondent (plaintiff) sent notice of demand dated 19.8.1995 under section 106 of the Transfer of Property Act on 22.8.1995 through registered post AD to the petitioner (defendant) but the petitioner (defendant) intentionally did not receive the same; and that thereafter, the respondent (plaintiff) sent another notice of demand dated 7.9.1995 under section 106 of the Transfer of Property Act on 8.9.1995 through registered post AD to the petitioner (defendant) but the same was refused by the petitioner (defendant) on 11.9.1995 It was, inter-alia, further alleged by the respondent (plaintiff) in the said suit that the petitioner (defendant) was liable to pay Rs. 1963-33 paisa towards arrears of rent for the period from 23.2.1994 upto 11.10.1995, and Rs. 1963-33 paisa towards arrears of rent for the period from 23.2.1994 upto 11.10.1995, and Rs. 86-67 paisa as mesne profits from 12.10.1995 to 6.11.1995, total amounting to Rs. 2050/-. It was, inter alia, further alleged by the respondent (plaintiff) in the said suit “that the valuation of suit for the purpose of jurisdiction and Court Fee is Rs. 3250/- over which Court fee is being paid on each reliefs separately.” 8. The said suit was registered as S.C.C Suit No. 130 of 1995. A copy of the plaint of the said suit has been filed as Annexure-3 to the writ petition. 9. The petitioner (defendant) contested the said suit and filed his written statement on 25.3.1996 A copy of the said written statement has been filed as Annexure-4 to the writ petition. 10. In paragraph 1 of the said written statement, the petitioner (defendant) admitted the contents of paragraph 1 of the plaint, namely, the assertions regarding the purchase of the said house No. Ck 48/5-A by the respondent (plaintiff), and since then, the respondent (plaintiff) being the owner and landlady in possession of the said house. 11. It was, inter-alia, further alleged by the petitioner (defendant) in the said written statement that by the order dated 27.8.1965, the petitioner (defendant) was allotted two rooms in House No. Ck 48/5 as tenant, and the petitioner (defendant) was still continuing as tenant of the two rooms in the said house; and that the rent, namely, Rs. 10/- per month in respect of the said two rooms was being paid by the petitioner (defendant) to the previous landlord, and the same was being accepted by the previous landlord; and that after the death of the previous owner Moti Lal, rent at the rate of Rs. 10/- per month in respect of the said two rooms in House No. Ck 48/5 was being paid by the petitioner (defendant) to Radhey Shyam and Gopal Prasad, sons of the said Moti Lal; and the even during the pendency of the suit, the petitioner (defendant) paid rent at the rate of Rs. 10/- per month to the said Radhey Shyam for the period upto the month “Kartik Sambat 2055”, and since the month “Agahan Sambat 2055”, rent was being paid to Radhey Shyam at the rate of Rs. 20/- per month. 12. 10/- per month to the said Radhey Shyam for the period upto the month “Kartik Sambat 2055”, and since the month “Agahan Sambat 2055”, rent was being paid to Radhey Shyam at the rate of Rs. 20/- per month. 12. It was, inter-alia, further alleged in the written statement that the previous landlord Gopal Prasad orally informed the petitioner (defendant) that the portion in which the petitioner (defendant) was the tenant had been sold on 23.2.1994 to Smt. Sushila Rastogi respondent (plaintiff), and the petitioner (defendant) was instructed to pay rent to the respondent (plaintiff). 13. It was, inter-alia, further alleged in the said written statement that in the month of August, 1994, the petitioner (defendant) contacted the respondent (plaintiff) for making payment of rent, but the respondent (plaintiff) avoided to receive the rent. It was, inter-alia, further alleged in the said written statement that when despite much effort, by the petitioner (defendant), the respondent (plaintiff) did not accept rent from the petitioner (defendant) then the petitioner (defendant) was compelled in the month of April, 1995 to send rent for 13 Months amounting to Rs. 130/- by money-order but the respondent (plaintiff) refused to accept the same. It was, inter-alia, further alleged in the said written statement that again, the petitioner (defendant), on 10.1.1996, sent rent for 15 months amounting to Rs. 150/- by money-order but the respondent (plaintiff) refused to accept the same, and the same was received back by the petitioner (defendant) on 25.1.1996 14. The evidence was led by both the sides in the said suit. 15. The respondent (plaintiff) besides filing documentary evidence, inter-alia, examined Hanuman Das Rastogi (husband of the respondent) as PW-1, Ganesh Prasad Prajapati as PW-2 and Ashok as PW-3. Copies of the statements of PW-1, PW-2 and PW-3 have been filed and collectively marked as Annexure-6 to the writ petition. 16. The petitioner (defendant), besides filing documentary evidence, inter-alia, examined himself as DW-1 and Hori Lal as DW-2. Copy of the statement of DW-1 (petitioner) has been filed as Annexure 7 to the writ petition. 17. The petitioner (defendant) as DW-1, inter-alia, stated in the cross-examination that the petitioner (defendant) was tenant of two rooms, out of which one room fell in the portion purchased by Smt. Sushila Rastogi (respondent-plaintiff) while the other room fell in the portion falling in the share of Radhey Shyam. 17. The petitioner (defendant) as DW-1, inter-alia, stated in the cross-examination that the petitioner (defendant) was tenant of two rooms, out of which one room fell in the portion purchased by Smt. Sushila Rastogi (respondent-plaintiff) while the other room fell in the portion falling in the share of Radhey Shyam. It was, inter-alia, further stated by the petitioner (defendant) as DW-1 in the cross-examination that he had gone to pay rent to Smt. Sushila Rastogi (respondent-plaintiff) but the said Smt. Sushila Rastogi (respondent-plaintiff) refused to accept the rent; and that the rent was tendered to Smt. Sushila Rastogi (respondent-plaintiff) at the rate of. 10/-. It was, inter-alia, further reiterated by the petitioner (defendant) as DW-1 in his cross-examination that after the purchase of the house by Smt. Sushila Rastogi (respondent-plaintiff), the petitioner (defendant) went to pay rent to her in respect of one room at the rate of Rs. 10/- per month; and that when Smt. Sushila Rastogi did not accept the rent, the same was sent by money-order. 18. The learned Judge, Small Cause Court, Varanasi, by the judgment and order dated 11.12.2000 (Annexure 8 to the writ petition) decreed the said suit filed by the respondent (plaintiff) in respect of the disputed accommodation. It was, inter-alia, held in the judgment and order dated 11.12.2000 that there was relationship of landlady and tenant between the respondent (plaintiff) and the petitioner (defendant). It was, inter-alia, further held that the service of notice on the petitioner (defendant) was sufficient. It was, inter-alia, further held that the petitioner (defendant) had accepted the respondent (plaintiff) as his landlady, and as such, the petitioner (defendant) could not get any benefit of the fact that his name was not mentioned as tenant in the assessment record wherein the name of the respondent (plaintiff) had been mutated as the owner. It was, inter-alia, further held that as a result of purchase by the respondent (plaintiff), one room in the tenancy of the petitioner (defendant) fell in the share of the respondent (plaintiff), and the notice for ejectment was given in respect of the said entire tenanted portion which fell in the share of the respondent (plaintiff), and there was no question of splitting of tenancy in the present case. It was, inter-alia, further held that the rate of rent was Rs. 10/- per month. It was, inter-alia, further held that the rate of rent was Rs. 10/- per month. It was, inter-alia, further held that the petitioner (defendant) was not entitled to the benefit of section 20 (4) of the U.P Act No. 13 of 1972 (in short “the Act”). 19. Against the said judgment and order dated 11.12.2000, the petitioner filed a revision under section 25 of the Provincial Small Cause Courts Act. The said revision was registered as S.C.C Revision No. 12 of 2001. 20. By the judgment and order dated 24.9.2002 (Annexure 10 to the writ petition), the learned Additional District Judge, Court No. 9, Varanasi dismissed the said revision filed by the petitioner. 21. It was, inter-alia, held in the said judgment and order dated 24.9.2002 that it was proved on the record that the petitioner (defendant) had accepted the respondent (plaintiff) as his owner and landlady since April, 1994, and there was relationship of landlady and tenant between the respondent (plaintiff) and the petitioner (defendant); and that the conclusions of the learned Judge, Small Cause Court to the said effect did not suffer from any error of law. It was, inter-alia, held that in view of the own statement of the petitioner (defendant) as DW-1, there were two rooms in the tenancy of the petitioner (defendant) on the ground floor, and the said two rooms were separate from each other and were at a distance of about 15 feet, and one of the said two rooms fell in the portion of the respondent (plaintiff) while the other room fell in the portion of Radhey Shyam. It was, inter-alia, further held that on the basis of the sale-deed dated 23.2.1994, the said two rooms fell in the separate shares of two different owners, and in the circumstances, there was no bar of splitting of tenancy. It was, inter-alia, further held that the petitioner (defendant) had accepted the respondent (plaintiff) as his owner and landlady, and in the circumstances, the provisions of section 109 of the Transfer of Property Act would not be a bar. It was, inter-alia, further held that it was proved in the circumstances including the admissions of the petitioner (defendant) as DW-1 that the rent in respect of the disputed accommodation was Rs. 10/- per month, and not Rs. 100/- per month as claimed by the respondent (plaintiff). It was, inter-alia, further held that it was proved in the circumstances including the admissions of the petitioner (defendant) as DW-1 that the rent in respect of the disputed accommodation was Rs. 10/- per month, and not Rs. 100/- per month as claimed by the respondent (plaintiff). It was, inter-alia, further held that the conclusion of the learned Judge, Small Cause Court, Varanasi denying benefit of section 20 (4) of the Act to the petitioner (defendant) was in accordance with law, and no interference was called for with the same. It was, inter-alia, further held that the conclusion arrived at by the learned Judge, Small Cause Court regarding sufficiency of service of the notice on the petitioner (defendant) was in accordance with law, and there was no error in the same. It was, inter-alia, further held that the non-examination of the respondent (plaintiff) herself as a witness did not have any adverse effect in the present case. 22. Therefore, the petitioner has filed the present writ petition seeking the reliefs mentioned above. 23. I have heard Sri C.K Parikh, learned Counsel for the petitioner (defendant) and Sri Ajai Kumar Singh, learned Counsel for the caveator-respondent (plaintiff) at length. 24. Sri Parikh, learned Counsel for the petitioner (defendant) submits that the petitioner (defendant) was tenant of two rooms at the rate of Rs. 10/- per month, and as such, after the sale deed dated 23.2.1994 in favour of the respondent (plaintiff), the apportionment of rent in accordance with section 109 of the Transfer of Property Act, 1882 ought to have been done between the respondent (plaintiff) and the said Radhey Shyam. It is submitted that as a result of the said sale deed, the disputed accommodation fell in the share of the respondent (plaintiff) while the other room in the tenancy of the petitioner (defendant) fell in the share of Radhey Shyam. Therefore, the contention proceeds, the rent in respect of the disputed accommodation could be Rs. 5/- per month, and the findings of the Courts below holding the rate of rent in respect of the disputed accommodation being Rs. 10/- per month were vitiated. 25. Therefore, the contention proceeds, the rent in respect of the disputed accommodation could be Rs. 5/- per month, and the findings of the Courts below holding the rate of rent in respect of the disputed accommodation being Rs. 10/- per month were vitiated. 25. In reply, Sri Ajai Kumar Singh, learned Counsel for the caveator-respondent (plaintiff) submits that in the present case, the petitioner (defendant) as per his own admission had attorned to the respondent (plaintiff) in respect of the disputed accommodation, and had tendered rent at the rate of Rs. 10/- per month. Therefore, it is submitted, no question of apportionment of rent is involved in the present case, as in view of the own admission of the petitioner (defendant), the rate of rent was Rs. 10/- per month in respect of the disputed accommodation. 26. In order to appreciate the submissions made by the learned Counsel for the parties, it will be relevant to quote section 109 of the Transfer of Property Act, 1882 : “109. Rights of lessor's transferee.— If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the leasee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer, cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him : Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee. The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased.” 27. The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased.” 27. A perusal of the first paragraph of section 109 of the Transfer of Property Act shows that if the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee shall possess all the rights of the lessor as to the property or part transferred so long as he is the owner of it. This, however, is subject to any contract to the contrary. 28. It is further evident from the first paragraph of section 109 of the Transfer of Property Act that if the lessee so elects, the transferee shall also be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it. This again is subject to any contract to the contrary. 29. Hence, it follows that if a part of the property leased is transferred, the transferee in view of the provisions of the first paragraph of section 109 of the Transfer of Property Act gets all the rights of the lessor in respect of the part so transferred, unless there is any contract to the contrary. Further, if the lessee so elects, the transferee in such a case will also be subject to all the liabilities of the lessor in respect of the part so transferred, unless there is any contract to the contrary. 30. In Mohar Singh v. Devi Charan . 1988 14 ALR 438 SC, their Lordships of the Supreme Court laid down as under (paragraph 5 of the said AIR) : “5. It is trite proposition that a landlord cannot split the unity and integrity of the tenancy and recover possession of a part of the demised premises from the tenant. But section 109, T.P Act, provides a statutory exception to this rule and enables an assignee of a part of the reversion to exercise all the rights of the landlord in respect of the portion respecting which the reversion is so assigned subject, of course, to the other covenant running with the land. But section 109, T.P Act, provides a statutory exception to this rule and enables an assignee of a part of the reversion to exercise all the rights of the landlord in respect of the portion respecting which the reversion is so assigned subject, of course, to the other covenant running with the land. This is the true effect of the words ‘shall possess all the rights….. of the lessor as to the property or part transferred…..’ occurring in section 109, T.P Act. There is no need for a consensual attunement. The attunement is brought about by operation of law. The limitation on the right of the landlord against splitting up of the integrity of the tenancy, inhering in the inhibitions of his own contract, does not visit the assignee of the part of the reversion. There is no need for the consent of the tenant for the severance of the reversion and the assignment of the part so severed. This proposition is too well settled to require any further elucidation or reiteration. Suffice it to refer to the succinct statement of the law by Wallis, C.J in Kannyan v. Alikutty . AIR 1920 Mad. 838 at p. 840 FB. : “…………… A lessor cannot give a tenant notice to quit a part of the holding only and then sue to eject him from such part only, as pointed out quite recently by the Privy Council in Harihar Banerji v. Ramasashi Roy . AIR 1918 PC 102 .. Consequently, if the suit is brought by the original lessor the answer to the question referred to us must be in the negative because such a suit does not lie at all. Other considerations, however, arise where as in the present case, the original lessor has parted in whole or in part with the reversion in part of the demised premises. Under the general law such an assignment effects a severance, and entitles the assignee on the expiry of the term to eject the tenant from the land covered by the assignment.” 31. Applying the provisions of the first paragraph of section 109 of the Transfer of Property Act to the present case, it is evident that the respondent (plaintiff) as a result of the said sale deed dated 23.2.1994 got all the rights of the previous owner and landlord in respect of the disputed accommodation vis-a-vis the petitioner (defendant). Applying the provisions of the first paragraph of section 109 of the Transfer of Property Act to the present case, it is evident that the respondent (plaintiff) as a result of the said sale deed dated 23.2.1994 got all the rights of the previous owner and landlord in respect of the disputed accommodation vis-a-vis the petitioner (defendant). The petitioner (defendant) was thus liable to pay rent to the respondent (plaintiff) in respect of the disputed accommodation since the date of the said sale deed, namely, 23.2.1994 32. As held by the Courts below the petitioner (defendant) attorned to the respondent (plaintiff) as the owner and landlady of the disputed accommodation, and the petitioner (defendant) also tendered rent at the rate of Rs. 10/- per month to the respondent (plaintiff) in respect of the disputed accommodation. 33. As noted above, the petitioner (defendant) in his written statement stated that twice he sent money-order to the respondent (plaintiff) tendering rent at the rate of Rs. 10/- per month, but the respondent (plaintiff) refused to accept the same. In his statement as DW-1 also, the petitioner (defendant) admitted having tendered rent to the respondent (plaintiff) at the rate of Rs. 10/- per month. 34. Third paragraph of section 109 of the Transfer of Property Act deals with the apportionment of existing rent where part of the leased property is transferred. It is provided that the lessor, the transferee and the lessee may determine “what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred.” However, if the lessor, the transferee and the lessee disagree, then such determination may be made “by any Court having jurisdiction to entertain a suit for the possession of the property leased.” 35. Third paragraph of section 109 of the Transfer of Property Act thus contemplates apportionment or proportionate sharing or proportionate division of the existing rent of the property leased between the lessor and the transferee. 36. As a result of apportionment or proportionate division or proportionate sharing of the existing rent, the rent in respect of the part of the property leased, which has been transferred, will evidently be lower than the existing rent in respect of the entire property leased. 36. As a result of apportionment or proportionate division or proportionate sharing of the existing rent, the rent in respect of the part of the property leased, which has been transferred, will evidently be lower than the existing rent in respect of the entire property leased. This is because, as a result of apportionment or proportionate division or proportionate sharing of the existing rent, one part of the existing rent in respect of the transferred portion of the property leased would become payable to the transferee, while the remaining part of the existing rent would become payable to the original lessor in respect of the portion of the property leased not transferred. Thus, in case apportionment or proportionate sharing or proportionate division of the existing rent is done where the part of the property leased is transferred, the rent payable to the transferee would evidently be lower than the existing rent in respect of the entire property leased. However, if the lessee does not demand apportionment of the existing rent for the transferred portion of the property leased but attorns to the transferee as landlord and tenders rent to the transferee for the transferred portion of the property leased at a rate equal to or higher than the rate of the existing rent in respect of the entire property leased, then there is evidently no question of apportionment of the existing rent as contemplated in the third paragraph of section 109 of the Transfer of Property Act. It is always open to the lessee to attorn to the transferee of a part of the property leased as landlord at a rate of rent which is higher than the rate of rent which would be payable in case the apportionment of the existing rent were to be done. 37. In the present case, as per the own admission of the petitioner (defendant), he was tenant of two rooms, and the rate of rent for the two rooms was Rs. 10/- per month. As a result of the sale deed dated 23.2.1994, one room (i.e the disputed accommodation) out of the two rooms in the tenancy of the petitioner came in the share of the respondent (plaintiff) while the other room in the tenancy of the petitioner remained in the share of the said Radhey Shyam. 10/- per month. As a result of the sale deed dated 23.2.1994, one room (i.e the disputed accommodation) out of the two rooms in the tenancy of the petitioner came in the share of the respondent (plaintiff) while the other room in the tenancy of the petitioner remained in the share of the said Radhey Shyam. It is also admitted by the petitioner (defendant) that he attorned to the respondent (plaintiff) as the landlady and owner in respect of the disputed accommodation, while the said Radhey Shyam remained landlord of the other room. It is further admitted by the petitioner that he tendered to the respondent (plaintiff) rent at the rate of Rs. 10/- per month in respect of the disputed accommodation. 38. Thus, instead of asking for apportionment of the existing rent, namely, Rs. 10/- per month for two rooms, the petitioner (defendant) himself tendered Rs. 10/- per month as rent to the respondent (plaintiff) in respect of one room i.e the disputed accommodation. 39. Evidently, therefore, no question of apportionment of rent was involved in the present case. The submission of Sri Parikh, learned Counsel for the petitioner, in my opinion, cannot be accepted. 40. Sri Parikh, learned Counsel for the petitioner has placed reliance on a decision of this Court in Smt. Vidyawati Bhargava v. VIII Additional District Judge, Kanpur . 2003 50 ALR 61.. It is submitted by Sri Parikh that the said decision supports his submission that the rent in respect of the disputed accommodation should be proportionately reduced. 41. Having considered the submission made by Sri Parikh, I find myself unable to accept the same. 42. In Smt. Vidyawaticase (supra), a portion of the disputed accommodation in tenancy was demolished. The tenant continued to remain in occupation of the undemolished portion of the disputed accommodation even thereafter. As the tenant did not exercise his option under section 108 Clause (e) of the Transfer of Property Act, his liability to pay rent continued to subsist. However, it was held that in such a case, the tenant would be liable to pay rent in respect of the portion, which remained in his possession after the demolition. In other words, the tenant would be liable to pay only proportionate rent in respect of the undemolished portion of the tenanted accommodation. 43. However, it was held that in such a case, the tenant would be liable to pay rent in respect of the portion, which remained in his possession after the demolition. In other words, the tenant would be liable to pay only proportionate rent in respect of the undemolished portion of the tenanted accommodation. 43. The relevant portion of the decision in Smt. Vidyawati case (supra) (paragraphs 51 to 55 of the said ARC) is quoted below : “51. From the decisions, it is evident that even if a lessee is evicted from a portion of the disputed accommodation his liability to pay rent would not come to an end unless he exercises his option under section 108 Clause (e) of the Transfer of Property Act. However, in such a case, lessee will be liable to pay rent in respect of the portion, which remains in his possession after the demolition. In other words, the lessee will be liable to pay only proportionate rent in respect of the undemolished portion of the tenanted accommodation. 52. In Dr. Kundan Lal v. Shamshad Ahmad, (supra), a learned Single Judge of this Court laid down as follows (paragraph 4 of the said AIR) : “4. It would thus appear that in case of the destruction of the leased accommodation through no fault of the landlord, the tenant can avoid payment of rent only if he declares the lease void under section 108 (e) of the Transfer of Property Act, but if he fails to do so, the lease will subsist for the benefit of both parties and the landlord is entitled to claim rent. The tenant may have his other remedies, if any, such as damages for breach of covenant to repair. But he cannot claim that the destruction of the building has deprived him of its possession and withhold rent from the landlord.” 53. This decision again shows that if the lessee is evicted from a portion of the disputed accommodation, and he does not exercise his option to declare the lease void under section 108 (e) of the Transfer of Property Act, then his liability to pay rent to the landlord would not come to an end. 54. This decision again shows that if the lessee is evicted from a portion of the disputed accommodation, and he does not exercise his option to declare the lease void under section 108 (e) of the Transfer of Property Act, then his liability to pay rent to the landlord would not come to an end. 54. There cannot thus be any dispute regarding this legal position that even if a lessee is evicted from a portion of the disputed accommodation, his liability to pay rent would not come to an end unless he exercises his option under section 108 (e), Transfer of Property Act. However, the question which would arise in such a case would be regarding quantum of rent, that is, whether the lessee would continue to remain liable to pay the same rent as it was for the entire tenanted accommodation prior to demolition, or he would be liable to pay only proportionate rent in respect of undemolished portion. 55. As noted above, the decisions in Gopalji Maharaj (supra) and Nar Singh Das Agarwal (supra) show that in such a situation, the lessee would be liable to pay only a proportionate rent in respect of the undemolished portion.” 44. The decision in Smt. Vidyawati Bhargava case (supra) is evidently distinguishable on the facts. In Smt. Vidyawati Bhargava case, portion of the tenanted accommodation was demolished and thus, the tenant was deprived of the demolished portion. The tenant continued in the undemolished portion of the tenanted accommodation only. In the circumstances, it was held that the tenant would be liable to pay only proportionate rent in respect of the undemolished portion. 45. In the present case, however, the facts are different. Here the petitioner (defendant) was tenant of two rooms. As a result of the sale deed dated 23.2.1994, the respondent (plaintiff) became landlady of one room (disputed accommodation), while the said Radhey Shyam remained landlord of the other room. Both the rooms continued in the tenancy of the petitioner (defendant) even after the said sale deed till the tenancy in respect of the disputed accommodation was determined by the respondent (plaintiff) by giving notice under section 106 of the Transfer of Property Act. Therefore, in the present case, no question of destruction or demolition of any portion of the tenanted accommodation is involved. Therefore, in the present case, no question of destruction or demolition of any portion of the tenanted accommodation is involved. The decision in Smt. Vidyawati Bhargava case (supra) is, therefore, not applicable to the facts of the present case. 46. Further, in the present case, as noted above, the petitioner (defendant) himself tendered Rs. 10/- per month as rent in respect of the disputed accommodation to the respondent (plaintiff), even though according to the petitioner (defendant) himself, the rent of the entire tenanted accommodation consisting of two rooms was Rs. 10/- per month. Thus, the petitioner never asked for apportionment of rent in the present case. 47. In view of the aforesaid discussion, I am of the opinion that the submission made by Sri Parikh on the basis of section 109 of the Transfer of Property Act, cannot be accepted. 48. Sri Parikh, learned Counsel for the petitioner then submits that the Courts below have acted illegally in denying the benefit of section 20 (4) of the Act to the petitioner (defendant). It is submitted that the written statement on behalf of the petitioner (defendant) was filed on 25th March, 1996, and the same should be deemed to be the date of first hearing as contemplated under section 20 (4) of the Act. It is further submitted that the petitioner was thus required to deposit rent for the period from 23.2.1994 (date of the sale deed in favour of the respondent-plaintiff) to 25.3.1996, i.e, for a period of 25 months. The deposit was required to be made, the submission proceeds, at the rate of Rs. Rs. 5/- per month in respect of the disputed accommodation. It is submitted that thus, the amount for the period from 23.2.1994 to 25.3.1996 would come to Rs. 125/-. It is further submitted that the cost of the suit would be determined on the valuation calculated on the basis of the rent of the disputed accommodation being Rs. 5/- only. In case so determined, the amount of Court Fee would be Rs. 6-00 (re : relief for ejectment) + Rs. 13-75 (re : arrears of rent) = Rs. 19-75. It is further submitted that Counsel's Fee would also be determined on the basis of the said valuation. Thus determined, the Counsel's Fee would come to Rs. 18.50 One-half of the Counsel's Fee would come to Rs. 6-00 (re : relief for ejectment) + Rs. 13-75 (re : arrears of rent) = Rs. 19-75. It is further submitted that Counsel's Fee would also be determined on the basis of the said valuation. Thus determined, the Counsel's Fee would come to Rs. 18.50 One-half of the Counsel's Fee would come to Rs. 9-25, which was required to be deposited by the petitioner (defendant). 49. It is submitted by Sri Parikh in conclusion that the petitioner (defendant) was thus required to deposit Rs. 125/- plus Rs. 19-75 plus Rs. 9-25, total equal to Rs. 154-00. Besides the said amount, the petitioner (defendant) was required to deposit interest at the rate of 9% per annum on the said amount of Rs. 125/-, and the said amount of interest, according to Sri Parikh, would come to Rs. 11.25 Thus, it is submitted, the petitioner (defendant) was required to deposit total amount of Rs. 154-00 plus 11.25, which is equal to Rs. 165-25, on the date of first hearing. It is submitted by Sri Parikh that on 25.3.1996, the petitioner (defendant) deposited a sum of Rs. 286/-. Thus, the deposit made by the petitioner (defendant) on 25.3.1996 was far more than the amount the petitioner was required to deposit under section 20 (4) of the Act. Therefore, it is submitted, the petitioner was entitled to the benefit of section 20, sub-section (4) of the Act. 50. In the alternative, Sri Parikh submits that even if the rate of rent in respect of the disputed accommodation was taken to be Rs. 10/- per month as decreed by the Courts below, the amount for the period from 23.2.1994 to 25.3.1996 would come to Rs. 250/-. It is further submitted that the cost of the suit would be determined on the valuation calculated on the basis of the rent of the disputed accommodation being Rs. 10/- as decreed by the Courts below, and not on the basis of actual cost incurred by the respondent (plaintiff) in the suit. In case so determined, the amount of Court Fee would be Rs. 12-50 (re : relief for ejectment) + Rs. 28.75 (re : arrears of rent) = Rs. 41-25. It is further submitted that Counsel's fee would also be determined on the basis of the said valuation. Thus determined, the Counsel's fee could come to Rs. 37-00. One-half of the said Counsel's fee would come to. 12-50 (re : relief for ejectment) + Rs. 28.75 (re : arrears of rent) = Rs. 41-25. It is further submitted that Counsel's fee would also be determined on the basis of the said valuation. Thus determined, the Counsel's fee could come to Rs. 37-00. One-half of the said Counsel's fee would come to. 18-50, which was required to be deposited by the petitioner. 51. Therefore, it is concluded by Sri Parikh, the petitioner was required to deposit Rs. 250/- plus Rs. 41.25 plus Rs. 18-50, total equal to Rs. 309-75. Besides the said amount, the petitioner (defendant) was required to deposit interest at the rate of 9% per annum on the said amount of Rs. 250/-, and the said amount of interest, according to Sri Parikh, would come to Rs. 22-50. Thus, it is submitted, the petitioner (defendant) was required to deposit total amount of. 309-75 plus Rs. 22-50, which is equal to Rs. 332-25. Sri Parikh submits that on 25.3.1996, the petitioner (defendant) deposited a sum of Rs. 286/-, and thus, there was a slight short-fall in making deposit as per the requirements of section 20 (4) of the Act, and the petitioner (defendant) cannot be deprived of the benefit of section 20 (4) of the Act on account of the said slight short-fall. 52. Sri Parikh has further submitted that under section 20 (4) of the Act, the deposit is to be made at the rate of rent which is ultimately determined by the Court, and not at the rate claimed by the landlord in the plaint. In support of the submission, Sri Parikh has placed reliance on the Division Bench decision of this Court in Mahendra Pratap Garg v. Smt. Vijai Laxmi Gangal . 1983 9 ALR 189 DB.. 53. It is further submitted by Sri Parikh that the said decision of the Division Bench of this Court was approved by their Lordships of the Supreme Court in Vijay Laxmi Gangal v. Mahendra Pratap Garg . 1985 11 ALR 569 SC.. 54. Sri Parikh has submitted that in any case, in the copy of the plaint supplied to the petitioner (defendant), the amount of Court Fee paid by the respondent (plaintiff) in the said suit was not mentioned, and in the absence of the details of Court Fee, the petitioner (defendant) could not be faulted with for depositing lesser amount on the date of first hearing. 55. Sri Parikh has further submitted that unless the amount is claimed in the plaint, the same is not required to be deposited by the tenant under section 20 (4) of the Act. He has placed reliance on a decision of this Court in Kanchan Singh v. Additional District and Sessions Judge, Dehradun . 1986 1 ARC 195.. 56. In reply, Sri Singh, learned Counsel for the caveator-respondent (plaintiff) submits that even assuming without admitting that 25.3.1996 was the date of first hearing, the deposit of Rs. 286/- made by the petitioner (defendant) on the said date was far below the amount which was required to be deposited under section 20 (4) of the Act. It is submitted that the Courts below have recorded categorical findings that the rate of rent payable by the petitioner (defendant) to the respondent (plaintiff) for the disputed accommodation was Rs. 10/- per month. Rent for the period of 25 months, (namely, from 23.2.1994 to 25.3.1996) would come to Rs. 250/-. It is further submitted by Sri Singh that so far as the cost of the suit is concerned, the petitioner (defendant) was required to deposit the actual cost incurred by the respondent (plaintiff). The valuation of the said suit being Rs. 3250/-, consisting of Rs. 2050-00 in respect of relief for arrears of rent and damages/mesne profits and Rs. 1200/- in respect of relief for ejectment, and the Court Fee on the said reliefs came to Rs. 511/-, which was paid by the respondent (plaintiff) in the said suit. Further, Counsel's fee would also be determined on the basis of the valuation of the suit being Rs. 3250/-. Thus determined, Counsel's fee would come to Rs. 325-00. One-half of the counsel's fee, which was required to be deposited by the petitioner (defendant), would, therefore, come to Rs. 162-50. 57. It is further submitted that the petitioner (defendant) was further required to deposit interest, the amount of which would come to Rs. 22.50 58. Thus, it is submitted by Sri Singh in conclusion, the petitioner was required to deposit Rs. 250/- plus Rs. 511/- plus Rs. 162-50 plus Rs. 22.50 = Rs. 946/- on 25.3.1996, assuming without admitting, the same would be the date of first hearing. 59. 22.50 58. Thus, it is submitted by Sri Singh in conclusion, the petitioner was required to deposit Rs. 250/- plus Rs. 511/- plus Rs. 162-50 plus Rs. 22.50 = Rs. 946/- on 25.3.1996, assuming without admitting, the same would be the date of first hearing. 59. Sri Singh submits that the cost of the suit which is required to be deposited under section 20 (4) of the Act is the actual cost incurred by the landlord and not the cost as determined on the basis of finding regarding rate of rent etc. recorded by the Court in its final decision. In support of this submission, Sri Singh has placed reliance on the decision of this Court in Gopal Yadav v. Special Judge (Anti-Corruption)/Additional District and Sessions Judge, Varanasi . 2002 46 ALR 454.. 60. Sri Singh has further submitted that the amount of interest required to be deposited under section 20 (4) of the Act is to be determined according to the principle laid down by this Court in Raj Bahadur Singh v. District Judge, Fatehpur . 1998 34 ALR 198.. 61. In order to appreciate the submission made by the learned Counsel for the parties, it is relevant to quote section 20 of the Act : “20. Bar of suit for eviction of tenant except on specified grounds.— (1) Save as provided in sub-section (2) [* * *] no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner : Provided that nothing in this sub-section shall bar a suit for the eviction of a tenant on the determination of his tenancy by efflux of time where the tenancy for a fixed term was entered into by or in pursuance of a compromise or adjustment arrived at with reference to a suit, appeal, revision or execution proceeding, which is either recorded in Court or otherwise reduced to writing and signed by the tenant. (2) A suit for the eviction of at tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely : (a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand : Provided that in relation to a tenant who is a member of the armed forces of the Union and in whose favour the prescribed authority under the Indian Soldiers (Litigation) Act, 1925 (Act No. IV of 1925), has issued a certificate that he is serving under special conditions within the meaning of section 3 of that Act or where he has died by enemy action while so serving, then in relation to his heirs, the words “four months” in this clause shall be deemed to have been substituted by the words “one year” : (b) that the tenant has wilfully caused or permitted to be caused substantial damage to the building; (c) that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it; (d) that the tenant [has without the consent in writing of the landlord used it for a purpose other than the purpose for which he was admitted to the tenancy of the building or otherwise done any act which is inconsistent with use], or has been connected under any law for the time being in force of an offence of using the building or allowing it to be used for illegal or immoral purposes; (e) that the tenant has sublet, in contravention of the provisions of section 25, or, as the case may be, of the old Act the whole or any part of the building; (f) that the tenant has renounced his character as such or denied the title of the landlord, and the latter has not waived his right of re-entry, or condoned the conduct of the tenant; (g) that the tenant was allowed to occupy the building as part of his contract of employment under the landlord, and his employment has ceased. [* * *] Object and reasons for deletion of section 20 (3).— Section 20 (3) of U.P Act XIII of 1972 provided that in suits for eviction the tenant should deposit at the first hearing the entire amount of the admitted rent and thereafter throughout the pendency of the suit deposit the admitted amount of rent every month in the Court. This provision is now proposed to be deleted from that Act and instead, like provision is proposed to be incorporated in Order XV of the Second Schedule to the Code of Civil Procedure, in order to bring within its scope all buildings and not merely those covered by U.P Act XIII of 1972. (4) 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 : Provided that nothing in this sub-section, 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 got vacated after acquisition, any residential building in the same city, municipality, notified or town area. [Explanation.— For the purposes of this sub-section : (a) the expression “first hearing” means the first date for any step or proceeding mentioned in the summons served on the defendant; (b) the expression “cost of the suit” includes one-half of the amount of Counsel's fee taxable for a contested suit.] (5) Nothing in this section shall affect the power of the Court to pass a decree on the basis of an agreement, compromise or satisfaction recorded under Rule 3 of Order XXIII of the First Schedule to the Code of Civil Procedure, 1908. [(6) Any amount deposited by the tenant under sub-section (4) or under Rule 5 of Order XV of the First Schedule to the Code of Civil Procedure, 1908 shall be paid to the landlord forthwith on his application without prejudice to the parties' pleadings and subject to the ultimate decision in the suits.]” 62. A perusal of section 20(2)(a) of the Act shows that a suit for eviction of a tenant from a building after the determination of his tenancy may be instituted on the ground that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand. Hence, if a tenant is in arrears of rent for not less than four months, and he has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand, then the landlord may file a suit for eviction of such tenant from the building in his tenancy. Such suit may be instituted after the determination of tenancy of such tenant. It is open to the landlord to give a composite notice of demand and the determination of tenancy to such tenant. 53. sub-section (4) of section 20 of the Act gives one more opportunity to the tenant to save himself from being evicted in a suit filed on the ground mentioned in Clause (a) of sub-section (2) of section 20 of the Act. For getting the benefit of sub-section (4) of section 20 of the Act, it is necessary that at the first hearing of the suit, the tenant should unconditionally pay or tender to the landlord or deposit in Court the following amounts : (i) The entire amount of rent and damages for use and occupation of the building due from the tenant. The damages for use and occupation would be calculated at the same rate as rent. (ii) Interest on the aforesaid amount of rent/damages for use and occupation calculated at the rate of 9% per annum. (iii) The landlord's costs of the suit. 64. While depositing aggregate of the aforesaid amounts at the first hearing of the suit, the tenant may deduct therefrom any amount already deposited by the tenant under sub-section (1) of section 30 of the Act. 65. (iii) The landlord's costs of the suit. 64. While depositing aggregate of the aforesaid amounts at the first hearing of the suit, the tenant may deduct therefrom any amount already deposited by the tenant under sub-section (1) of section 30 of the Act. 65. In case, the aforesaid deposit is made by the tenant according to the provisions of sub-section (4) of section 20 of the Act, the Court may, in lieu of passing a decree for eviction, pass an order relieving the tenant against his liability for eviction on the ground mentioned in Clause (a) of sub-section (2) of section 20 of the Act. 66. Proviso to sub-section (4) of section 20 lays down that sub-section (4) of section 20 would not be applicable to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacant after acquisition, any residential building in the same city, municipality, notified area or town area. 67. Explanation (a) to sub-section (4) of section 20 gives the meaning of the expression “first hearing”. Accordingly, “first hearing” means the first date for any step or proceeding mentioned in the summons served on the defendant. 68. Explanation (b) to sub-section (4) of section 20 provides that the expression “cost of the suit” includes one-half of the amount of counsel's fee taxable for a contested suit. 69. Let us now consider various items which are required to be deposited under section 20 (4) of the Act for getting benefit of the said provision. 70. As noted above, the first item which is required to be deposited under section 20 (4) of the Act is the entire amount of rent and damages for use and occupation of the building due from the tenant. The damages for use and occupation would be calculated at the same rate as the rate of rent. 71. Question arises as to whether the amount which is required to be deposited towards rent and damages would be calculated at the rate of rent as claimed by the landlord in the suit, or the said amount is required to be deposited at the rate of rent which is ultimately determined by the Court in its final decision. 72. 71. Question arises as to whether the amount which is required to be deposited towards rent and damages would be calculated at the rate of rent as claimed by the landlord in the suit, or the said amount is required to be deposited at the rate of rent which is ultimately determined by the Court in its final decision. 72. In Mahendra Pratap Garg case (supra), a Division Bench of this Court laid down as follows (paragraphs 12, 13, 14, 15, 16, 17, 18, 19 and 20 of the said ARC) : “12. Clause (a) of section 3 (1) of the Rent Control Act, 1947 was similar to Clause (a) of section 20 (2) of the present Rent Control Act. Interpreting this Clause in the 1947 Act, a Division Bench of this Court in Lala Manohar Lal's case held that the amount of arrears of rent mentioned in the notice of demand need not be the exact amount found due on the date of the notice by the Court in case the amount is contested on behalf of the defendant. The tenant is called upon to pay the arrears of rent, which, in the first instance, means the amount mentioned in the notice. If the tenant does not admit the correctness of that amount and does not like to pay the full amount, there seems to be no reason why he should not pay at least such amount as he considers to be due. If he makes such a payment he safeguards his position and the fault would be entirely the landlord's if he goes to Court seeking eviction of the tenant. He will fail in his suit if the tenant succeeds in satisfying the Court that he had paid up the arrears of rent due, even though the demand was for a larger amount. The plaintiff will succeed if the tenant fails to establish that and the plaintiff succeeds in establishing that in spite of what the tenant had paid some amount of arrears of rent still remained due after one month of the service of notice. 13. The legislature, must be deemed to have accepted this interpretation because it has re-enacted Clause (a) of section 20 (2) of the present Act in the same terms. 14. 13. The legislature, must be deemed to have accepted this interpretation because it has re-enacted Clause (a) of section 20 (2) of the present Act in the same terms. 14. In order to defeat a suit for ejectment, it is not necessary for the tenant to comply with the demand of the landlord as mentioned in the notice of demand. If he pays the correct amount which may be found due in case of a dispute, the suit for ejectment will fail. 15. Sub-section (4), section 20 gives another occasion to the defendant to save his tenancy. It does not insist that the tenant should pay the amount demanded by the landlord in the suit. It asks the tenant to pay the amount due together with interest and costs. The payment, tender or deposit should be unconditional. An unconditional deposit made under sub-section (4) has to be paid out to the landlord forthwith. The payment of the unconditional deposit is under sub-section (6) without prejudice to the parties' pleadings and further is subject to the ultimate decision in the suit. The clear intent is that if the tenant pays or deposits the amount due a decree for ejectment should not be passed. Sub-section (6) makes it clear that irrespective of the tenant unconditionally depositing the amount due and the same being paid to the landlord the pleadings of the parties remain operative. The suit is liable to go on if the pleadings raise triable issues. The payment has been made subject to the decision, namely, the findings. The payment of the unconditional deposit to the landlord is without prejudice to the parties' pleadings, i.e, the pleadings of both the parties are protected or safeguarded. By receiving payment of the unconditional deposit a landlord does not compromise his pleadings. The payment of the deposit does not imply any admission by the landlord of any part of the tenant's case. The same should be the tenant's fate. The making of the payment, tender or deposit cannot have any impact or effect on the tenant's pleadings. 16. Under sub-section (6) the payment of the unconditional deposit is subject to the decision of the suit. The payment is thus tentative. The landlord cannot finally appropriate the amount paid to him in fulfillment of his claimed rights. The payment does not have the effect of admission of liability by the tenant. 16. Under sub-section (6) the payment of the unconditional deposit is subject to the decision of the suit. The payment is thus tentative. The landlord cannot finally appropriate the amount paid to him in fulfillment of his claimed rights. The payment does not have the effect of admission of liability by the tenant. The rights and liabilities of the parties are to be determined by the Court. The payment of the unconditional deposit will be subject to the findings of the Court. The fate and the sufficiency of the payment of the unconditional deposit will depend on the decision of the suit. In case of dispute, the findings of the Court will determine the rights and liabilities of the parties. 17. If the landlord succeeds in establishing his claim the Court will see whether the amount deposited by the tenant was in accordance with the landlord's claim. If the amount deposited was sufficient, the Court will not pass a decree for ejectment. But if it was insufficient, sub-section (4) of section 20 will be of no avail to the tenant not because it was conditional but on the ground that the deposit was insufficient and not of the entire amount due. On the other hand, if the tenant succeeds in establishing his case, the Court will equally see whether the deposit made by him at the first hearing was correct, in accordance with the findings. The fact that the landlord had made an exaggerated claim will not help him in getting a decree for ejectment. 18. The submission that the deposit to be unconditional must be in acknowledgment of liability as claimed by the landlord will render sub-section (6) superfluous and otiose. 19. Under the law of contract, making payment or tender after stating the accounts or under protest is no more than saying that the payment is offered as believed to be due by the person making the payment or reserving the right of contesting the justice of the claim without prejudice to the making of the payment. In all such cases the person who makes the payment does not impose any condition on payment. The payment is unconditional. In such cases the creditor can take the payment on that footing and say, “I take the money, protest as much as you please,” and neither party makes any admission of the claim in the other. In all such cases the person who makes the payment does not impose any condition on payment. The payment is unconditional. In such cases the creditor can take the payment on that footing and say, “I take the money, protest as much as you please,” and neither party makes any admission of the claim in the other. A Scott v. Uxbridge and Rickmansworth R. Co. A person making a tender has a right to exclude presumptions against himself by saving, “I pay it as a whole that is due”. But if he requires the other party to accept it as all that is due, that is imposing a condition. (i) Bowen v. Owan, (ii) Sati Prasad v. Monmotha Nath, (iii) Bank of Mysore v. B.D Noidu.” 20. In our opinion, the term ‘unconditional’ has been used in section 20 (4) in a similar sense. If a tenant makes a deposit but, at the same time, states that the amount is not to be paid out to the landlord unless he accepts it in full discharge of the liability, that would be imposing a condition. Or, if the tenant says that the amount deposited by him should be kept in deposit and should not be paid out till the decision of the suit, that will make the deposit conditional. But taking divergent pleas in the written statement as to the extent or quantum of liability to pay rent does not make the deposit conditional. The purpose of the deposit is to pay it to the landlord ‘forthwith’ (see sub-section (6)). The deposit is to be unconditional in the sense that there be no impediment or condition to its immediate payment.” 73. In view of this decision, it is evident that even if the landlord claims a larger amount in respect of arrears of rent and damages while the tenant deposits such amount which amount is due according to the tenant, and the Court ultimately accepts the version of the tenant, then too the tenant would be entitled to the benefit of section 20 (4) of the Act. In other words, the tenant is not required to deposit the arrears of rent and damages as claimed by the landlord in the suit, the tenant may deposit such rent and damages as are in arrears according to the tenant, and in case the Court ultimately accepts the version of the tenant, then too the tenant would be entitled to the benefit of section 20 (4) of the Act. 74. Hence, it follows that for getting benefit of section 20 (4) of the Act, the amount in respect of rent and damages is required to be deposited at the rate of rent which is ultimately determined by the Court in its final decision, and not at the rate of rent as claimed by the landlord in the suit. 75. The said decision of the Division Bench in Mahendra Pratap Garg case (supra) was affirmed by their Lordships of the Supreme Court in Smt. Vijai Laxmi Gangal case (supra). It is thus evident that the determination of the first item regarding “the entire amount of rent and damages for use and occupation” for the purpose of section 20 (4) would be done on the basis of the finding ultimately recorded by the Court regarding the rate of rent and regarding the amount of arrears due from the tenant. 76. Applying the aforesaid principle to the present case, it is evident that in order to get the benefit of section 20 (4) of the Act, the petitioner (defendant) was required to deposit the rent and damages for use and occupation at the rate of Rs. 10/- per month which was the rate of rent determined by the Courts below in respect of the disputed accommodation. As held in the earlier part of the judgment, the submission made by the learned Counsel for the petitioner (defendant) that the rate of rent would be less than Rs. 10/- per month in view of section 109 of the Transfer of Property Act, cannot be accepted. Hence, for getting the benefit of section 20 (4) of the Act, the petitioner was required to deposit rent at the rate of Rs. 10/- per month. 77. 10/- per month in view of section 109 of the Transfer of Property Act, cannot be accepted. Hence, for getting the benefit of section 20 (4) of the Act, the petitioner was required to deposit rent at the rate of Rs. 10/- per month. 77. Even assuming without deciding that the date of first hearing was 26.3.1996 as submitted by the learned Counsel for the petitioner (defendant) the rent/damages due from the petitioner (defendant) was for the period from 23.2.1994 to 25.3.1996 i.e, for a period of 25 months. Hence, the rent/damages required to be deposited by the petitioner (defendant) for getting the benefit of sub-section (4) of section 20 would come to Rs. 250/-. 78. Coming now to the second item, which is required to be deposited under sub-section (4) of section 20 of the Act, namely, interest at the rate of 9% per annum, it is evident from a perusal of section 20 (4) of the Act that the interest at the rate of 9% per annum is to be deposited on the entire amount of rent and damages for use and occupation of the building due from the tenant (such damages for use and occupation being calculated at the same rate as rent). As noted above, for deciding whether the tenant is entitled to the benefit of section 20 (4) of the Act, the amount of rent and damages as ultimately determined by the Court would be taken into consideration, and not the amount claimed by the landlord in the suit in respect of rent and damages. Therefore, for the purpose of deposit under section 20 (4) of the Act, the amount of interest would also be calculated on the amount of rent and damages as ultimately determined by the Court, and not on the amount as claimed by the landlord in suit in respect of rent and damages. The amount of rent/damages required to be deposited by the petitioner (defendant) for getting the benefit of section 20 (4) of the Act, as noted above, would come to Rs. 250/-, hence, interest at the rate of 9% per annum would be determined on the said amount of Rs. 250/-. 79. Question arises as to how to compute interest at the rate of 9% per annum. 250/-, hence, interest at the rate of 9% per annum would be determined on the said amount of Rs. 250/-. 79. Question arises as to how to compute interest at the rate of 9% per annum. In Raj Bahadur case (supra), this Court laid down that the amount of interest is to be determined as follows (paragraph 8 of the said ARC) : “8. Learned Counsel for the petitioner submitted before this Court that the Lower Revisional Court while calculating the amount of interest has committed an arithmetical error inasmuch as the interest on the monthly rent for February 83 would start only from 1.3.1983 and, therefore, interest on rent became due only for 46 months and if calculated at the rate of 9% per annum, the amount would come to Rs. 486.45 only. For determining the exact amount of interest required to be deposited under the terms of section 20 (4), the following formula has to be applied. Suppose ‘A’ is number of months for which interest became due on arrears of rent and damages, the formula to be applied is A × (A + 1) × 1/2 = B B is the figure which is to be multiplied with the monthly interest.” 80. In the present case, rent/damages due from the petitioner (defendant) was for the period from 23.2.1994 to 25.3.1996, i.e, for a period of 25 months at the rate of Rs. 10/- per month. The interest on the monthly rent for the period from 23.2.1994 to 25.3.1994 would start running only on the expiry of the said month. Therefore, interest on rent/damages became due only for 24 months. As laid down in Raj Bahadur case (supra), Amount of interest = B × Monthly interest. ‘B’ is calculated according to the following formula. B=A × (A + 1) × ½ where ‘A’ is the number of months for which interest became due on arrears of rent and damages. Monthly interest at the rate of 9% per annum. Now, in the present case, as noted above, interest on rent/damages became due for 24 months. Therefore, ‘A’ = 24 Hence, ‘B’ = 24 × (24 + 1) × ½ or, ‘B’ = 300 Monthly interest at the rate of 9% per annum (taking the rate of rent/damages as Rs. 10/- per month) Hence, amount of interest = 300 × 0.075 = Rs. 22-50. 81. Therefore, ‘A’ = 24 Hence, ‘B’ = 24 × (24 + 1) × ½ or, ‘B’ = 300 Monthly interest at the rate of 9% per annum (taking the rate of rent/damages as Rs. 10/- per month) Hence, amount of interest = 300 × 0.075 = Rs. 22-50. 81. Thus, the petitioner (defendant) was required to deposit Rs. 22.50 in respect of second item, namely, interest at the rate of 9% per annum. 82. Coming now to the third item, namely, the landlord's costs of the suit, question arises as to whether the tenant is required to deposit the actual costs incurred by the landlord in the suit or the costs as determined on the basis of the findings ultimately recorded by the Court regarding the rate of rent, the amount of arrears of rent and damages, etc. 83. A perusal of section 20 (4) of the Act shows that the said provision requires the tenant to deposit “the landlord's costs of the suit in respect thereof”. Explanation (b) to section 20 (4) of the Act provides that the expression “cost of the suit” includes one-half of the amount of Counsel's fee taxable for a contested suit. 84. Reading the expression “the landlord's costs of the suit in respect thereof” occurring in section 20 (4) of the Act with the provisions of Explanation (b) to section 20 (4) of the Act clearly shows that section 20 (4) of the Act requires deposit of the actual costs incurred by the landlord in the suit, and not the costs as determined on the basis of the findings ultimately recorded by the Court regarding the rate of rent, the amount of arrears of rent and damages, etc. This conclusion finds support from the decision of this Court in Gopal Yadav case (supra), wherein a learned Single Judge of this Court laid down as follows (paragraphs 8, 14, 16, 17 and 18 of the said ARC) : “8. This conclusion finds support from the decision of this Court in Gopal Yadav case (supra), wherein a learned Single Judge of this Court laid down as follows (paragraphs 8, 14, 16, 17 and 18 of the said ARC) : “8. The question for consideration of this Court is as to whether, the ‘cost of suit’, apart from others include (i) actual amount of Court Fee paid by the plaintiff, and (ii) 1/2 counsel fee on a contested suit (as submitted by the learned Counsel for the landlord-respondent) or the amount of Court Fee which would have been payable on the basis of the ‘rate of rent’ pleaded by the defendant in the written statement (and, after parties have lead evidence, Court finally found to be correct). 14. The legislature has used the expression “… Landlord's costs of the suit…..” and that it avoided to use expression “which would have been finally found payable” or “which should have been finally found to be payable on the reliefs granted by the Court”. 16. In my considered opinion aforesaid aimed to confer provision is not solely benefit upon ‘tenant’ only but to confer benefit upon both landlord and tenant. Secondly this Court cannot do violence with a given statutory provision while interpreting it and particularly when there is no ambiguity in the language requiring interpretation. 17. Perusal of the impugned judgment and order, with reference to the charts annexed with the writ petition as Annexures-6 and 7 to the writ petition, clearly shows that considerable amount of Court Fee as well as half lawyers on taxable side and clerkage have not been deposited by the tenant-petitioner. 18. It is abundantly clear that tenant has not deposited the required amount towards “landlords” costs of suit contemplated under section 20 (4) of the Act and, therefore, he cannot claim benefit to section 20 (4) of the Act and protect, himself from eviction from the accommodation in question.” 85. In view of the aforesaid legal position, it is evident that the petitioner (defendant) was required to deposit the actual costs incurred by the respondent (plaintiff) in the suit. In view of the aforesaid legal position, it is evident that the petitioner (defendant) was required to deposit the actual costs incurred by the respondent (plaintiff) in the suit. In the said Suit No. 130 of 1995 keeping in view the provisions of Explanation (b) to section 20 (4) of the Act, the landlord's costs of the suit, inter-alia, includes Court Fee paid in the suit and one-half of the Counsel's fee taxable for a contested suit besides other items taxable towards costs of the suit. The valuation of the said Suit No. 130 of 1995 as is evident from a perusal of the plaint (Annexure-3 to the writ petition) was Rs. 2050/- in respect of relief for arrears of rent and mesne profits, and the valuation of the suit in respect of the relief for ejectment was. 1200/-. Court Fee in respect of relief for arrears of rent and mesne profits would come to Rs. 309-50, while Court Fee in respect of relief for ejectment would come to Rs. 201-50. Thus, total Court Fee payable by the respondent (plaintiff) in the said suit came to Rs. 309-50 + 201-50 = 511/-. The Court Fee, as noted above, actually paid by the respondent (plaintiff) (landlady) in the said Suit No. 130 of 1995 was Rs. 511/-. Thus, the Court Fee to be included in respect of the costs of the suit incurred by the landlady (respondent-plaintiff) would be = Rs. 511/-. 86. Counsel's fee taxable for a contested suit is to be calculated in accordance with the provisions of Rule 585 of the General Rules (Civil), 1957. The total valuation of the said Suit No. 130 of 1995, as noted above, would be = Rs. 2050 +. Rs. 1200/- = Rs. 3250. Keeping in view the provisions of Clause (viii) of Rule 585 of the General Rules (Civil), 1957, the Counsel's fee in the said suit would come to. Rs. 325/-. Explanation (b) to section 20 (4) of the Act requires deposit of one-half of the amount of counsel's fee taxable for a contested suit. Therefore, the petitioner (defendant) was required to deposit one-half of Rs. 325/- i.e, Rs. 162.50 87. Hence, besides other items taxable towards costs, the petitioner was required to deposit towards the costs of the suit Rs. 511/- in respect of Court Fee + Rs. Therefore, the petitioner (defendant) was required to deposit one-half of Rs. 325/- i.e, Rs. 162.50 87. Hence, besides other items taxable towards costs, the petitioner was required to deposit towards the costs of the suit Rs. 511/- in respect of Court Fee + Rs. 162-50 in respect of one-half of the amount of Counsel's fee, total = Rs. 673-50. 88. Sri Parikh, as noted above, has submitted that in any case, since the amount of Court Fee paid by the respondent (plaintiff) in the said suit was not mentioned in the copy of the plaint supplied to the petitioner (defendant), the petitioner (defendant) could not be faulted with for depositing lesser amount on the date of first hearing. It is submitted by Sri Parikh that unless the amount is claimed in the plaint, the same is not required to be deposited by the tenant under section 20 (4) of the Act. He has placed reliance on the decision in Kanchan Singh case (supra) in this regard. 89. In Kanchan Singh case (supra), one of the questions considered was as to whether the amount of cost of the notice was to be deposited in compliance with the requirements of section 20 (4) of the Act. The cost of the notice, namely, Rs. 50/- was claimed in the plaint of the suit. There was no specific denial of the said claim in the written statement. Considering the said fact, it was laid down by this Court in Kanchan Singh case (supra) as follows (paragraphs 10 and 11 of the said ARC) : “10. Respondent 2 had claimed the cost of the notice in the suit. There was no specific denial to this para in the written statement. That apart, the question is as to what is the amount which the tenant will be obliged to deposit under sub-section (4) of section 20 in order to avail the benefit conferred by it. The liability of the tenant is to deposit the landlord's costs of the suit. This deposit is to be made on the first date of hearing. Upto that date no adjudication or determination takes place with regard to the amount claimed. If a tenant wants to get the benefit, he has to deposit the amount claimed by the landlord, unless it is demonstrated that any one of the items made in the suit were frivolous or wholly unfounded. Upto that date no adjudication or determination takes place with regard to the amount claimed. If a tenant wants to get the benefit, he has to deposit the amount claimed by the landlord, unless it is demonstrated that any one of the items made in the suit were frivolous or wholly unfounded. If that is not done, the tenant would not be entitled to get the benefit of sub-section (4) of section 20. The legislature did not intend to any adjudication by the landlord at the first date of hearing. The provision was made for the benefit of the tenant, and to give another opportunity to save his tenancy. If the tenant wants to save his tenancy, he will have to deposit the amount claimed in the suit but if the amount is frivolous, the tenant may not be denied the benefit of sub-section (4) of section 20 on the ground of having not deposited the amount. But, where, as here, the cost of the notice was Rs. 50/- and nothing could be shown to me that it was frivolous amount, non-deposit of the same appears to me is fatal to the petitioner. The expression “landlord's cost in respect thereof” would include the cost of the notice also. Apart from the aforesaid item of Rs. 50, the defendant further did not deposit the item claimed by the plaintiff-respondent 2 at item Nos. (f) to (k) in the judgment. Even the amount of interest deposited was deficient by Rs. 3.48 In this view, the deposits made by the defendant, could not confer upon him the benefit of sub-section (4) of section 20. 11. In Musrat Ali v. Additional District Judge, Alld. . 1981 UP RCC 164., the cost of the notice had since not been claimed in the plaint, the learned Judge found that failure to deposit the amount of the aforesaid item did not deprive the tenant of the benefit of sub-section (4) of section 20. What follows from this case is that if the amount is claimed in the plaint and if the tenant wants the benefit of section 20 (4), he will have to deposit the same.” 90. In my opinion, the decision in Kanchan Singh case (supra) does not support the submission made by Sri Parikh. What follows from this case is that if the amount is claimed in the plaint and if the tenant wants the benefit of section 20 (4), he will have to deposit the same.” 90. In my opinion, the decision in Kanchan Singh case (supra) does not support the submission made by Sri Parikh. The question which was considered in Kanchan Singh case (supra) was in regard to the cost of the notice, which was specifically claimed in the plaint. However, the said decision cannot be construed as having laid down that the tenant would be required to deposit “the landlord's cost of the suit” as per the requirements of section 20 (4) of the Act only if the landlord made specific claim in regard to the same. In my opinion, section 20 (4) makes a statutory provision, giving an additional opportunity to the tenant to save his eviction by making the deposits as per the requirements of section 20 (4) of the Act, and as such, it is for the tenant to determine as to what amounts he is required to deposit at the first hearing of the suit in respect of various items mentioned in section 20 (4) of the Act. The tenant cannot claim that he is not required to comply with the requirements of section 20 (4) of the Act in regard to certain items, such as, Court Fee, as the same were not mentioned in the plaint of the suit. 91. Therefore, even if the amount of Court Fee paid by the respondent (plaintiff) in the suit was not mentioned in the plaint, still the petitioner (defendant) for claiming the benefit of section 20 (4) of the Act was required to deposit at the first hearing of the suit, all the items mentioned in section 20 (4) of the Act including the Court Fee paid by the respondent (plaintiff) in the said suit. 92. It is further note-worthy that Order VII, Rule 1 of the Code of Civil Procedure which deals with the particulars to be contained in the plaint, provides as follows : “1. 92. It is further note-worthy that Order VII, Rule 1 of the Code of Civil Procedure which deals with the particulars to be contained in the plaint, provides as follows : “1. Particulars to be contained in plaint.— The plaint shall contain the following particulars : (a) the name of the Court in which the suit is brought; (b) the name, description and place of residence of the plaintiff; (c) the name, description and place of residence of the defendant, so far as they can be ascertained; (d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect; (e) the facts constituting the cause of action and when it arose; (f) the facts showing that the Court has jurisdiction; (g) the relief which the plaintiff claims; (h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and (i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of Court Fees, so far as the case admits.” Clause (i) of Rule 1 of Order VII of the Code of Civil Procedure, thus requires “a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of Court Fees, so far as the case admits.” Paragraph 14 of the plaint of the said Suit No. 130 of 1995 is quoted below : “14. That the valuation of suit for the purpose of jurisdiction and Court Fee is Rs. 3250/- over which Court Fee is being paid on each reliefs separately.” 93. Thus, a perusal of the above paragraph 14 of the plaint shows that the statement as per the requirement of Clause (i) of Rule 1 of Order VII of the Code of Civil Procedure was contained in the said plaint. 94. In view of the said statement made in the plaint, the submission made by Sri Parikh regarding absence of particulars of Court Fee in the plaint, cannot be accepted. 95. In view of the aforesaid discussion, it will be noticed that the petitioner (defendant) was required to deposit the following amounts, as per the requirements of section 20 (4) of the Act : (i) Rent/damages Rs. 250-00 (ii) Interest Rs. 95. In view of the aforesaid discussion, it will be noticed that the petitioner (defendant) was required to deposit the following amounts, as per the requirements of section 20 (4) of the Act : (i) Rent/damages Rs. 250-00 (ii) Interest Rs. 22-50 (iii) Landlords (Respondent's) costs of the suit (including only Court Fee and one-half of the Counsel's fee) Rs. 673-50 Rs. 946-00 96. It may be mentioned that the aforesaid amount does not include various other items taxable towards the costs of the suit. 97. Thus, while the petitioner (defendant) was required to deposit the aforesaid amount of Rs. 946/- at the first hearing of the suit for getting benefit of section 20 (4) of the Act, the petitioner (defendant) deposited a sum of Rs. 286/- only on 25.3.1996 (assuming without deciding, the same to be the date of first hearing). Thus, the amount deposited by the petitioner (defendant) was far below the amount, which was required to be deposited under section 20 (4) of the Act. As such, the petitioner (defendant) was not entitled to the benefit of section 20 (4) of the Act. Hence, the findings recorded by the Courts below in this regard are in accordance with law. 98. Sri Parikh, learned Counsel for the petitioner (defendant) lastly submits that the respondent (plaintiff), who was the landlady of the disputed accommodation, ought to have examined herself as a witness, but the respondent (plaintiff), inter-alia, examined her husband Hanuman Das Rastogi as PW-1. It is submitted that in view of the fact that the respondent (plaintiff) did not examine herself as a witness, adverse inference ought to have been drawn against the respondent (plaintiff). 99. I have considered the submission made by Sri Parikh, learned Counsel for the petitioner (defendant), and I find myself unable to accept the same. 100. The learned Additional District Judge, Court No. 9, Varanasi in the judgment and order dated 24.9.2002 has given cogent reasons for rejecting the said submission made on behalf of the petitioner (defendant). It has, inter-alia, been pointed out that the petitioner (defendant) himself had been dealing with the husband of the respondent (plaintiff), and as such, examination of the husband of the respondent (plaintiff) as PW-1 was sufficient, and no adverse inference could be drawn on account of the non-examination of the respondent (plaintiff) herself as a witness. 101. It has, inter-alia, been pointed out that the petitioner (defendant) himself had been dealing with the husband of the respondent (plaintiff), and as such, examination of the husband of the respondent (plaintiff) as PW-1 was sufficient, and no adverse inference could be drawn on account of the non-examination of the respondent (plaintiff) herself as a witness. 101. Sri Parikh, learned Counsel for the petitioner in support of his submission has placed reliance on a decision of the Supreme Court in Vidyadhar v. Mankikrao . 1999 35 ALR 738 SC.. 102. In Vidyadhar case (supra), their lordships of the Supreme Court laid down as follows (paragraphs 13, 14 and 15 of the said ARC) : “13. Even while plaintiff was in the witness box, defendant No. 2 declined to cross-examine the plaintiff which shows that defendant No. 2 after admitting the case of the plaintiff, had no interest in the litigation particularly as he had already transferred the property in favour of the plaintiff. 14. It was defendant No. 1 who contended that the sale deed, executed by defendant No. 2 in favour of the plaintiff, was fictitious and the whole transaction was a bogus transaction as only Rs. 500/- were paid as sale consideration to defendant No. 2. He further claimed that payment of Rs. 4,500/- to defendant No. 2 at his home before the registration of the deed was wholly incorrect. This plea was not supported by defendant No. 1 as he did not enter into the witness box. He did not state the facts pleaded in the written statement on oath in the Trial Court and avoided the witness box so that he may not be cross-examined. This, by itself, is enough to reject the claim that the transaction of sale between defendant No. 2 and the plaintiff was a bogus transaction. 15. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh . AIR 1927 PC 230 .. AIR 1927 PC 230 .. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh . AIR 1930 Lah. 1., and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh . AIR 1931 Bom. 97.. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat . AIR 1970 M.P 225 ., also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra). The Allahabad High in Arjun Singh v. Virender Nath . AIR 1971 All. 29 ., held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand . AIR 1974 P&H 7 ., drew a presumption under section 114 of the Evidence Act against a party who did not enter into the witness box.” 103. As is evident from paragraphs 13 and 14 of the said decision, quoted above, the said decision was based on the peculiar facts and circumstances of the case. In the said case, while the defendant No. 2 who was a party to the transaction of sale between himself and the plaintiff, admitted the case of the plaintiff, the defendant No. 1 who was not a party himself, contended that the sale deed, executed by the defendant No. 2 in favour of the plaintiff, was fictitious and the whole transaction was a bogus transaction. However, the defendant No. 1 did not enter into the witness box to give his statement on oath. Considering the said circumstances, their Lordships of the Supreme Court relying upon illustration (g) to section 114 of the Indian Evidence Act, 1872 laid down that where a party to the suit did not appear into the witness box and stated his own case on oath and did not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him was not correct. Accordingly, the claim of the defendant No. 1 was rejected. 104. In my opinion, the decision in Vidyadhar case (supra), is not applicable to the facts and circumstances of the present case. In the present case, as noted above, the respondent (plaintiff) examined her husband-Hanuman Das Rastogi as PW-1. Accordingly, the claim of the defendant No. 1 was rejected. 104. In my opinion, the decision in Vidyadhar case (supra), is not applicable to the facts and circumstances of the present case. In the present case, as noted above, the respondent (plaintiff) examined her husband-Hanuman Das Rastogi as PW-1. No suggestion was made to the said Hanuman Das Rastogi (PW-1) in the cross-examination that he had no personal knowledge in regard to the facts and circumstances of the present case. In fact, the petitioner (defendant) who examined himself as DW-1 admitted in his statement that he was having dealing with the said Hanuman Das Rastogi, husband of the respondent (plaintiff) in connection with the tenancy in question. As such, in my opinion, there was no occasion for the Courts below to draw any adverse inference on account of the fact that the respondent (plaintiff) herself did not appear in the witness box. 105. Reference in this connection may be made to the decision of the Apex Court in Pandurang Jivaji Apte v. Ramchandra Gangadhar Ashtekar . AIR 1981 SC 2235 , wherein their Lordships of the Apex Court laid down as follows (paragraphs 11 and 13 of the said AIR) : “11. In our opinion the question of drawing an adverse inference against Apte and Bavdekar on account of their absence from the Court would arise only when there was no other evidence on the record on the point in issue………………..” “13. …………….. The question of drawing an adverse inference against a party for his failure to appear in Court would arise only when there is no evidence on record.” 106. It was held that there was admission of the decree-holder as well as the documentary evidence on the record, and as such, there was no occasion for drawing adverse inference against Apte and Bavdekar on account of their absence from the Court. 107. In view of the aforesaid discussion, I am of the opinion that this writ petition lacks merit, and the same is liable to be dismissed. The writ petition is accordingly dismissed. 108. Sri C.K Parikh, learned Counsel for the petitioner (defendant) has then submitted that some reasonable time may be granted to the petitioner (defendant) for vacating the disputed accommodation. 109. The writ petition is accordingly dismissed. 108. Sri C.K Parikh, learned Counsel for the petitioner (defendant) has then submitted that some reasonable time may be granted to the petitioner (defendant) for vacating the disputed accommodation. 109. I have heard Sri C.K Parikh, learned Counsel for the petitioner (defendant) and Sri Ajai Kumar Singh, learned Counsel for the caveator-respondent (plaintiff) on this question also. 110. Having considered the facts and circumstances of the case and the submissions made by the learned Counsel for the parties, it is directed that the petitioner will not be evicted from the disputed accommodation till 31st October, 2003 provided the petitioner gives an undertaking before the Prescribed Authority, Varanasi on his personal affidavit within six weeks from today incorporating the following conditions : 1. The petitioner will vacate the disputed accommodation on or before 31st October, 2003 and will hand-over peaceful vacant possession of the same to the respondent. 2. The petitioner will pay to the respondent the entire decreetal amount with rent/damages upto April, 2003 within eight weeks from today. The amount, if any, already deposited by the petitioner in the suit will be adjusted. 3. The petitioner will continue to pay rent/damages at the decreed rate of rent with effect from May, 2003 by 7th of each succeeding month till the date of vacating the disputed accommodation. 111. In case, the aforesaid requisite undertaking is not given by the petitioner within the time granted or the petitioner does not comply with any of the aforesaid conditions incorporated in the undertaking, this order granting time to the petitioner for vacating the disputed accommodation will stand automatically vacated, and it will become open to the respondent to execute the decree forthwith. Petition Dismissed.