N. D. Ojha, J. - (1.) ONE Sri Sant Ram Bhatia was landlord of an accommodation of which the petitioner is the tenant. Sri Sant Ram Bhatia filed a suit for ejectment and recovery of arrears of rent and damages against the petitioner in the court of Small Causes at Kanpur. During the pendency of the litigation Sri Sant Ram Bhatia died and is now represented by his legal representatives, respondents 1 to 8. The case of Sri Sant Ram Bhatia was that the accommodation in question was constructed in the year 1964 and consequently neither U. P. Temporary Control of Rent and Eviction Act (hereinafter referred to as U. P. Act No. Ill of 1947) nor U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 (hereinafter referred to as U. P. Act No. XIII of 1972) applied to the said accommodation. The defence of the petitioner, however, was that the said accommodation had been constructed in the year 1962 and consequently U. P. Act No. XIII of 1972 became applicable to it in the year 1972. His further case was that he had deposited a sum of Rs. 240/- on 6th July, 1973 under Section 30 of U. P. Act No. XIII of 1972 and another sum of Rs. 1140/- on 13th February, 1975 under the same section. According to him, if these deposits were taken into account, he was not in arrears of any rent when the suit was instituted. The petitioner further deposited a sum of Rs. 1432/- on 17th September, 1975 purporting to be in compliance of Section 39 of U. P. Act No. XIII of 1972 and after making the said deposit he claimed immunity from a decree for eviction being passed against him. At this place it may be pointed out that Sri Sant Ram Bhatia had already given credit to the sum of Rs. 240/- deposited by the petitioner under Section 30 on 6th of July, 1973 and there was no dispute in regard to that amount. The deposit which was made on 17th September, 1975 by the petitioner under Section 39 of U. P. Act No. XIII of 1972 had been made after adjusting the sum of Rs. 1140/- deposited by him on 13th February, 1975 under Section 30 aforesaid. On the question as to when the accommodation in dispute was constructed, the Judge Small Cause Court accepted the plea raised by the landlord and held that the said accommodation had been constructed on 1st October, 1964 within the meaning of U. P. Act No. XIII of 1972. On this finding, he held that U. P. Act No. XIII of 1972 was not applicable to the accommodation in question prior to 1st October, 1974. He further seems to have taken the view that since the suit was filed in the year 1973, the petitioner was not entitled to adjust the sum of Rs. 1140/- deposited on 13th February, 1975. Even though it has not been so stated in his order, it appears that the Judge Small Cause Court was of the view that benefit of Sec. 39 of U.P. Act No. XIII of 1972 could be given to the petitioner only if he had deposited the sum of Rs, 1140/- also on 17th September, 1975 along with the sum of Rs. 1432/-deposited by him. On this finding the suit both for recovery of arrears of rent as well as mesne profits and for ejectment of the petitioner from the accommodation in question was decreed. A revision was filed by the petitioner before the District Judge which was dismissed by the Illrd Additional District Judge, Kanpur on 2nd November, 1976. It is these two orders which are sought to be quashed in the present writ petition.
(2.) BEFORE dealing with the respective submissions made by the counsel for the parties, it may be pointed out that the petitioner had earlier preferred a civil revision in this Court against the order of the Illrd Additional District Judge dated 2nd November, 1976, which I am informed by the counsel for the petitioner, has after the institution of the writ petition been dismissed on the ground that It was not maintainable. It was urged by the counsel for the petitioner that since on the own finding recorded by the Judge Small Causes Court, U. P. Act No. XIII of 1972 had become applicable to the accommodation in question on Ist October, 1974, the deposit made by the petitioner of the sum of Rs. 1140/- towards rent on 13th February, 1975 was a valid deposit and in view of sub-section (6) of the said section that amount will be deemed to have been paid to the landlord. It was further urged that on the finding recorded by the Additional District Judge if the sum of Rs. 1140/-deposited by the petitioner under Section 30 of U.P. Act No. XIII of 1972 on 13th February, 1975 was given due credit, the deposit made on 17th September, 1975 under Section 39 of the said Act fulfilled the requirements of the said section and no decree for eviction of the petitioner could be passed in view of the statutory requirement of Section 39. For the landlord, respondents, 1 to 8, it was urged that the benefit of the deposit under Section 30 could not be availed of by the petitioner inasmuch as there was nothing to indicate that the petitioner had tendered the sum of Rs. 1140/- to the then landlord and it had been refused by him. Counsel for the landlords, with reference to sub-section (1) of Section 30, submitted that a deposit under Section 30 could be made only if the requirement of the said sub-section was complied with. Having heard counsel for the parties, I am of opinion that the impugned orders suffer from a manifest error of law in so far as they have held that the petitioner was not entitled to ajdust the sum of Rs. 1140/- deposited by him on 13th February, 1975 under Section 30 of U. P. Act XIII of 1972 and have deprived him of the benefit of Sec. 39 on that ground. As seen above, U. P. Act No. XIII of 1972 became applicable to the accommodation in question on 1st October, 1974. As such, if there was no other impediment, the petitioner was entitled to make the deposit under Section 30 on 13th February, 1975 if the said amount had been tendered to the landlord and refused by him. Further, there can be no manner of doubt that if the said deposit was valid, the sum of Rs. 1140/- so deposited would be deemed to be due payment of the said amount to the landlord in view of subsection (6) of Section 30. In so far as the submission made by the counsel for the landlord respondents is concerned, it may be pointed out that the then landlord himself have due credit to the sum of Rs. 240/- deposited by the petitioner on 6th July, 1973 under the same section. That deposit, according to the petitioner, had been made because the landlord had refused to accept the rent. From a perusal of the impugned orders it is apparent that the landlord never raised this plea before either the Judge Small Cause Court or the Additional District Judge that after the deposit dated 6th July, 1973 he had expressed his willingness to accept the rent if it was tendered to him directly. Further, it was also not asserted by the landlord that the petitioner had not made any tender of the sum of Rs. 1140/- to him before depositing the said amount under Section 30 on 13th February, 1975. Whether or not the amount was tendered by the petitioner to the landlord before making the deposit and refused by the landlord, is a question of fact. Such a question cannot be permitted to be raised for the first time under Article 226 of the Constitution. Had this plea been raised before the Small Causes Court after the petitioner had claimed the benefit to Section 39 of U.P. Act XIII of 1972, an issue would have been framed on the point and the matter could have been thrashed out after taking evidence. The same having not been done, this question of fact cannot be permitted to be raised now. As the court accepted the deposit of Rs. 1140/- u/Sec. 30 on !3th February, 1975, it will be deemed that the court was satisfied that the requirement of Sec. 30 had been fulfilled. In view of Section 114 (e) of the Evidence Act it can be presumed that judicial acts have been regularly performed. Of course, this presumption was rebuttable but the burden to rebut that presumption by raising the necessary plea and proving it, lay on the landlord. In the instant case he failed to do so. Since in view of the finding of the Additional District Judge, if the deposit of Rs. 1140/-made by the petitioner on 13th February, 1975 under Section 30 of U. P. Act XIII of 1972 is given due credit, the deposit made on 17th September, 1975 under Section 39 of the said Act was sufficient to entitle the petitioner to the benefit of sub-section (1) of the said section. I am of opinion that the decree insofar as it relates to ejectment of the petitioner from the accommodation in dispute suffers from a manifest error of law and cannot be sustained.
(3.) AT this stage, it may also be pointed out that as found by the Additional District Judge, the summons of the suit were served on the petitioner on 26th August, 1975 and the deposit made under Section 39 of U. P. Act XIII of 1972 on 17th September, 1975 was apparently within 30 days of the knowledge of the suit as contemplated by this section. Nothing has been brought to my notice which may indicate that the petitioner had knowledge of the suit at any time earlier. It was then urged by the counsel for respondents 1 to 8 that the petitioner was not entitled to the benefit of any deposit made under Section 30 of the Act after the institution of the suit for ejectment and in such a contingency, the entire amount contemplated by Section 39 had to be deposited under the said section. I find no substance in this submission either. When Section 39 talks of depositing the entire amount of rent, it apparently refers to that amount of rent which is still payable by the tenant to the landlord on the date on which the deposit under Section 39 is being made. In view of sub-Section (6) of Section 30 of U. P. Act XIII of 1972 the effect of the deposit of Rs. 1140/- on 13th February, 1975 by the petitioner under sub-section (1) of Section 30 would be that it shall be deemed that the tenant has paid it on the date of such deposit to the landlord, it cannot be said that on 17th September, 1975 when the deposit under Section 39 of U. P. Act XIII of 1972 was being made by the petitioner, that amount was still payable by him to the landlord.;