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2010 DIGILAW 1803 (ALL)

Ashok Kumar v. Pratap Singh

2010-05-27

DEVENDRA PRATAP SINGH

body2010
JUDGMENT 1. Heard counsel for the petitioner and the counsel for the respondent-caveator. 2. This petition is directed against concurrent orders dated 8.1.2008 and 16.3.2010 by which the respondent-landlord's suit for eviction and arrears of rent has been decreed by both the courts below. 3. The respondent-landlord instituted a suit no.41 of 2004 before Judge, Small Cause Court for eviction and arrears of rent against the petitioner. It was inter-alia alleged that though the petitioner was a house grabber but since he had filed a suit no. 44 of 2003 alleging himself to be the tenant of the petitioner in the disputed shop at Rs.200/- per month, therefore assuming that he was a tenant at Rs.200/- per month, but he had not paid rent from January, 2003 and in spite of notice dated 7.1.2004, neither he tendered rent nor vacated the premises. It was further pleaded that U.P. Act No. XIII of 1972 was not applicable and therefore, the defendant was liable for eviction. 4. The petitioner-tenant contested the suit saying that he was depositing the amount under section 30 of the Act and further that the Act was applicable and he was not in arrears of rent. 5. After the parties had led their evidences, both the courts below had held that though the Act was applicable, the petitioner was not entitled to the benefit of section 20 (4) of the Act or the benefit of deposit under section 30 of the Act. 6. It is firstly urged that the notice was not duly served upon the tenant and as such the proceedings were vitiated. 7. Both the courts below have recorded categorical finding that apart from the fact that there were deemed service of registered notice on the petitioner, his counsel was duly served. This finding of fact has not been shown to be perverse. 8. It is then urged that the entire amount was deposited prior to the first date of hearing in the courts below have erroneously held short deposit. The deposits were made on the first date of hearing. 9. Both the courts below have recorded categorical finding that the entire amount under section 20(4) of the Act was not deposited and further that he will not be entitled to the benefit of deposit under section 30 of the Act. The deposits were made on the first date of hearing. 9. Both the courts below have recorded categorical finding that the entire amount under section 20(4) of the Act was not deposited and further that he will not be entitled to the benefit of deposit under section 30 of the Act. It is apparent from the record that there is no denial of acceptance of rent by the landlord and therefore, the deposit under section 30 of the Act would not give any protection to the petitioner. Even otherwise, admittedly, only Rs.500/- was deposited which amounted to rent of only 25 months and remaining rent was not deposited nor the cost of suit or the interest was deposited which is evident from the tender annexed with the writ petition. Therefore, both the courts below were justified in rejecting the application. 10. Learned counsel for the petitioner has vehemently urged that since the amounts were deposited before filing of the written statement, he was entitled to its benefit as held by this Court in Jyoti Prasad Misra Vs. 1st Additional District Judge, Mainpur and others. Learned Single Judge in Jyoti's case has rightly held that if the entire amount is deposited prior to the filing of written statement, the tenant would be entitled to benefit.. However, as already stated hereinabove, the entire amount under section 20 (4) of the Act was not deposited and therefore, the petitioner was not entitled to its benefit. Not other points has been urged. 11. For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected.