JUDGMENT Hon’ble S.U. Khan, J.—Heard Sri Arvind Srivastava, learned counsel for tenant petitioner and Sri Rashtrapati Khare, learned counsel for landlord respondent. 2. This is tenant’s writ petition arising out of suit for eviction instituted by landlady respondent No. 3, Smt. Uma Devi against the petitioner in the form of S.C.C. Suit No. 33 of 1998. J.S.C.C. Jhansi decreed the suit for eviction and recovery of arrears of rent on 2.4.1999. Against the said decree tenant petitioner filed S.C.C. Revision No. 45 of 1999, which was dismissed by A.D.J. Court No. 1, Jhansi on 3.4.2006 hence this writ petition. 3. The suit was filed on the ground of default. Rate of rent according to the landlady is Rs. 20/- per month and according to the tenant Rs. 15/- per month. Initially Sri Umashanker Pathak was owner landlord of the accommodation in dispute. He sold the property to respondent No. 3 on 10.1.1996. Respondent No. 3 gave notice to the petitioner on 18.11.1996 and filed the suit giving rise to the instant writ petition on 15.4.1998. The tenant pleaded that earlier Umashanker Pathak had filed S.C.C. Suit No. 10 of 1989 against the petitioner stating that the rate of rent was Rs. 15/- per month hence it categorically proved that the rate of rent was Rs. 15/- per month. Tenant further pleaded that respondent No. 3 nowhere stated that when it was enhanced from Rs. 15/- to 20/- per month. In the plaint of the suit in question it was stated that rent was due since 6.10.1989. The landlady respondent No. 3 in her oral statement copy of which is Annexure-11 to the writ petition stated that as through the sale-deed dated 10.1.1996 previous owner landlord had transferred five houses to the petitioner and in the sale-deed it had been stated that the total rent of the five houses was Rs. 100/- per month, hence she understood that the rent of each house including the house in dispute was Rs. 20/- per month. In my opinion this is not the way of proving the rate of rent. 4. The notice sent by the respondent No. 3 dated 18.11.1996 was admitted by tenant petitioner. She also gave reply to the notice on 3.12.1996. The petitioner did not examine herself as witness. The Courts below accepted the version of the landlady regarding rate of rent being Rs. 4. The notice sent by the respondent No. 3 dated 18.11.1996 was admitted by tenant petitioner. She also gave reply to the notice on 3.12.1996. The petitioner did not examine herself as witness. The Courts below accepted the version of the landlady regarding rate of rent being Rs. 20/- per month on the basis of oral statements of P.W.-2, Harimohan and P.W.-1, the plaintiff. If tenant had agreed to pay Rs. 20/- per month rent to respondent No. 3 after she had purchased the property in dispute from its previous owner then the said thing should have been mentioned in the notice date 18.11.1996, copy of which is Annexure-7 to the writ petition. In the said notice no such thing was mentioned that initially rate of rent was Rs. 15/- per month, however after purchase by the respondent No. 3 from its previous owner the tenant petitioner agreed to enhance the rent to Rs. 20/- per month. 5. Accordingly, the findings recorded by the Courts below regarding rate of rent are reversed. 6. Regarding default the Courts below have rightly held that the allegation of period of default made in para-3 of the plaint was not specifically denied in para-3 of the written statement or in any other para of the written statement. Copies of the plaint and written statement are Annexures 6 and 10 to the writ petition. In para-3 of the written statement only this much was stated that para-3 of the plaint was admitted partly. However, in para-11 of the written statement she stated that no rent was due. She did not state that she had paid rent to whom. In the written statement reference was made to the reply notice given by the petitioner defendant, copy of which is Annexure-8 to the writ petition. In para-2 of the notice, it was mentioned that the tenant had paid rent to the previous owner till the period when he was landlord. 7. Accordingly, I do not find any error in the finding recorded by both the Courts below that petitioner was defaulter. She did not deposit any amount claiming the benefit of Section 20(4) of U.P. Act No. 13 of 1972. 7. Accordingly, I do not find any error in the finding recorded by both the Courts below that petitioner was defaulter. She did not deposit any amount claiming the benefit of Section 20(4) of U.P. Act No. 13 of 1972. In para-12 of the writ petition reference has been made to money order receipt dated 22.7.1998 sending the rent from January, 1996 to December, 1998 and money order receipt dated 12.12.1998 sending the rent from January, 1999 to June 1999. Firstly, these money orders were sent during pendency of the suit (suit had already been filed on 15.4.1998) hence they were meaningless and they were not received by the landlady. 8. In the sale-deed which according to learned counsel for the petitioner was filed before the trial Court and copy of which has been supplied by him, unpaid rent if any was not transferred. Accordingly petitioner could not claim rent prior to the date of purchase. In view of this it was not at all necessary to decide as to whether until the sale of the property by the previous owner rent had or had not been paid by the tenant-petitioner to the previous landlord. Both the Courts below committed patent error of law by decreeing the suit for recovery of rent from 15.4.1995. Suit for recovery of rent could be decreed only with effect from the date of sale i.e. 10.1.1996. In respect of decree for arrears of rent the other patent error which the Courts below committed was that they passed the decree for recovery of rent at the rate of Rs. 20/- per month. Landlady had completely failed to prove that rate of rent was Rs. 20/- per month. Accordingly, decree for recovery of rent should have been passed at the rate of Rs. 15/- per month. The third error in this regard committed by the Courts below is that since the date of expiry of period of notice (18.12.1996) till the date of filing of suit (15.4.1998) damages at the rate of Rs. 5/- per day i.e. (Rs.1500/- per month) were awarded. Until the decree of eviction is passed, in case tenancy is covered by Rent Control Act damages at a higher rate than the rent cannot be awarded. 9. Accordingly, decree for eviction passed by the Courts below is maintained. 5/- per day i.e. (Rs.1500/- per month) were awarded. Until the decree of eviction is passed, in case tenancy is covered by Rent Control Act damages at a higher rate than the rent cannot be awarded. 9. Accordingly, decree for eviction passed by the Courts below is maintained. However, decree for recovery of arrears of rent is modified and it is held that landlady respondent is entitled to a decree for recovery of rent and damages for use and occupation since 10.1.1996 till date @ Rs. 15 per month. 10. Writ petition is accordingly disposed of. 11. However, tenant-petitioner is granted six months time to vacate on the following conditions. 1. Within one month from today tenant petitioner files an undertaking before the Prescribed authority/Additional J.S.C.C. to the effect that on or before the expiry of aforesaid period of six months she will willingly vacate and handover possession of the property in dispute to the landlady-respondent. 2. For this period of six months, which has been granted to the tenant-petitioner to vacate, she is required to pay Rs. 3000/-( at the rate of Rs. 500/- per month) as rent/damages for use and occupation. This amount shall also be deposited within one month before the Prescribed Authority/Additional J.S.C.C. and shall immediately be paid to the landlady-respondent. 12. In case of default in compliance of any of these conditions tenant-petitioner shall be evicted through process of Court after six weeks. It is further directed that in case undertaking is not filed or the amount of Rs. 300/- is not deposited within one month then tenant-petitioner shall be liable to pay damages at the rate of Rs. 1000/- per month since after one month till the date of actual vacation. 13. Similarly if after complying with the above conditions property in dispute is not vacated on the expiry of six months then since after six months till actual vacation tenant shall be liable to pay rent/damages for use and occupation @ Rs. 1000/- per month. It is needless to add that this condition is in addition to the landlords’ right to file contempt petition for violation of the undertaking and execution application before the J.S.C.C. ——————