JUDGMENT : S.U. Khan, J. Heard learned Counsel for the parties. 2. Landlord respondent No. 2, Smt. Janki Devi since deceased and survived by legal representatives instituted S.C.C./Suit No. 6 of 1992 against tenant petitioner for eviction and recovery of arrears of rent. In the plaint, it was stated that accommodation in dispute, which is situate on the first floor, was constructed in the year 1986/87 and it was assessed for house tax for the first time during the said period, hence U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 was not applicable. The tenant asserted that building in dispute was constructed in the year 1970 and let out to him in the year 1978, hence Act was applicable. As far as default is concerned, tenant petitioner deposited entire arrears of rent etc. on the first date of hearing to claim benefit of Section 20(4) of the Act, which is quoted below: 20. Bar of suit for eviction of tenant except on specified grounds. (1)... (2)... (3)... (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 area 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. 3. The trial court/J.S.C.C., Banda dismissed the suit through judgment and decree dated 2.5.1995. However, plaintiff landlord was held entitled to withdraw the amount deposited by the tenant. The J.S.C.C. held that building was constructed much before 1986-87, hence Act was applicable. Against the judgment and decree passed by the trial court, landlord respondent No. 2 filed S.C.C. Revision No. 20 of 1995. IInd A.D.J., Banda allowed the revision through judgment and order dated 18.11.1999, set aside the judgment and decree passed by the trial court and remanded the matter to the trial court for fresh decision in the light of the observations made in the body of the revisional court's judgment. Tenant petitioner has challenged the said order passed by the revisional court through this writ petition. 4. Landlord respondent's case was that even though building on the ground floor had been constructed long before, however building in dispute situate on the first floor was constructed in 1986-87. Old and new assessment records were also filed. Old assessment records have been annexed as Annexure C.A.-l to the counter-affidavit, which was also available before the courts below. In the extract of assessment register from 1975-76 to 1980-81 only one occupant Ram Janki wife of Omkar Prakash and tea stall is mentioned and rent is mentioned as Rs. 30 per month. In the extract of assessment register of Nagarpalika, from 1981-82 to 1985-86, same position is there. However in the extract of assessment register from. 1986-87 to 1990-91, against house in dispute numbered as 717/7, tea stall is shown and in addition thereto two shops and three rooms are also shown. The said extract is Annexure-21A to the writ petition. 5. Plaintiff specifically pleaded that first floor was constructed in the year 1986. 6. Revisional court based its Judgment upon Explanation to Section 2(2) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Lower revisional court has mentioned in its judgment that Chandra Shekhar Awasthi P.W. 2 was record keeper of Nagarpalika and he had brought the assessment registers before the trial court of different periods. 6. Revisional court based its Judgment upon Explanation to Section 2(2) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Lower revisional court has mentioned in its judgment that Chandra Shekhar Awasthi P.W. 2 was record keeper of Nagarpalika and he had brought the assessment registers before the trial court of different periods. In the extract of assessment registers for 1986-87 to 1990-91, names of other tenants occupying different portions were mentioned, however name of the petitioner did not find place in the said register. From this fact, revisional court inferred that in 1986-87, petitioner was not tenant. 7. The trial court had placed reliance upon certain letters for determining the date of construction. Date of construction is to be determined as per Section 2(2) Explanation 1 and not on any other basis. By virtue of the aforesaid Explanation in the absence of recording by or reporting to municipal authorities, the date from which first assessment comes into effect is to be taken as the date of construction. 8. Thereafter the revisional court held that the finding of the trial court that rate of rent was Rs. 150 per month as alleged by the tenant and not Rs. 300 per month as alleged by the landlord was not correct. With this finding of the revisional court, I do not agree in the least for two reasons. Firstly, finding of fact could not be interfered with by the revisional court. Secondly, revisional court held that the tenant deposited rent as demanded by the landlord for taking benefit of Section 20(4) of the Act under protest, hence it amounted to his admission regarding rate of rent and he was also not entitled to benefit of the said section. In my opinion, if tenant deposits the rent under protest, it does not mean that it cannot be withdrawn by the landlord. Moreover, deposit of rent at the rate alleged by the landlord is no admission that said rate is correct if tenant asserts otherwise. 9. In my opinion, if tenant deposits the rent under protest, it does not mean that it cannot be withdrawn by the landlord. Moreover, deposit of rent at the rate alleged by the landlord is no admission that said rate is correct if tenant asserts otherwise. 9. The revisional court has held as follows: Since the rate of rent is a finding of fact, the payment thereof is also a finding of fact, this Court does not like to interfere this finding but definitely when it has been held by this Court that the disputed construction would be deemed to have been built in the year 1986 as contemplated u/s 2(2) Explanation 1(a) of U.P. Act No. 13 of 1972, the findings of the learned lower court are liable to be set aside because of the whole finding given to be improper, in case the case of the defendant regarding the date of the construction of the house is not believed. Moreover, it has also been held by me that the defendant has committed default in payment of the rent and, thus, also the finding of the learned court is liable to be set aside. 10. In my opinion, there was absolutely no occasion to remand the matter. Revisional court on the interpretation of Section 2(2) Explanation 1 of the Act held that building was constructed in the year 1986-87, This finding was based upon interpretation and application of the aforesaid proviso. It was finding of law, which could very well be recorded by the revisional court after setting aside the contrary finding of the trial court. There was, therefore, no need to remand the matter after recording the categorical finding regarding non-applicability of the Act. 11. I find that the findings of the trial court, on the points of rate of rent, payment of rent and benefit of Section 20(4) of the Act, were findings of fact, which could not be interfered with by the revisional court. The view of the revisional court that as the deposit was under protest and rate of rent alleged by the landlord was also accepted by the tenant, deposit could not be said to be unconditional is erroneous in law. Tenant did not put any rider on the right of the landlord to withdraw the amount. The view of the revisional court that as the deposit was under protest and rate of rent alleged by the landlord was also accepted by the tenant, deposit could not be said to be unconditional is erroneous in law. Tenant did not put any rider on the right of the landlord to withdraw the amount. In my opinion, the suit was liable to be decreed only on the ground that the Act was not applicable upon the building in dispute. However, finding of rate of rent being Rs. 150 per month and the finding regarding its payment recorded by the trial court were findings of fact, which could not be interfered with by the revisional court. 12. Accordingly, both the impugned judgments, decree of the trial court and order of the revisional court are modified. Suit for eviction is decreed only on the ground that Act was not applicable to the building in dispute when the suit was filed. The finding of trial court that rate of rent was Rs. 150 per month is approved. The findings of the trial court that rent till March, 1992 had been paid by the tenant are also approved. Accordingly, suit is decreed for recovery of rent w.e.f. 1.4.1992. Pendente lite and future rent till date is also decreed @ Rs. 150 per month. 13. Writ petition is accordingly disposed of. 14. Tenant-petitioner is granted six months time to vacate provided that: 1. Within one month from today tenant files an undertaking before the J.S.C.C. to the effect that on or before the expiry of aforesaid period of six months he will willingly vacate and handover possession of the property in dispute to the landlord-respondent. 2. For this period of six months, which has been granted to the tenant-petitioner to vacate, he is required to pay Rs. 4,500 (at the rate of Rs. 750 per month) as rent/damages for use and occupation. This amount shall also be deposited within one month before the J.S.C.C. and shall immediately be paid to the landlord-respondent. 3. Within one month from today tenant shall deposit entire decretal amount due till date @ Rs. 150 per month (after adjusting any amount already deposited) before J.S.C.C. for immediate payment to landlord respondent. 15. This amount shall also be deposited within one month before the J.S.C.C. and shall immediately be paid to the landlord-respondent. 3. Within one month from today tenant shall deposit entire decretal amount due till date @ Rs. 150 per month (after adjusting any amount already deposited) before J.S.C.C. for immediate payment to landlord respondent. 15. In case of default in compliance of any of these conditions tenant-petitioner shall be evicted through process of court after one month and shall also be liable to pay damages at the rate of Rs. 1,500 per month since after one month till the date of actual vacation. 16. Similarly, if after filing the aforesaid undertaking and depositing decretal amount and Rs. 4,500 the accommodation in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs. 1,500 per month since after six months till actual vacation. It is needless to add that this direction is in addition to the right of the landlord to file contempt petition for violation of undertaking and execution application.