N. D. Ojha, J. - (1.) :-
(2.) THE petitioner is the tenant of an accommodation of which respondent no. 1 is the landlord. A suit was instituted by respondent no. 1 for the ejectment of the petitioner from the said accommodation as also for recovery of arrears of rent and damages on 27th July, 1972 on the ground that the petitioner was in arrears of rent for more than four months and had failed to pay the same within one month from the date of service of notice of demand upon him as contemplated by section 20 (2) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (herein-after referred to as the Act). THE petitioner contested the suit, inter alia, on the ground that the arrears of rent in respect of which the respondent no. 1 had served upon him a notice of demand had already been paid to the Munim of the said respondent and that consequently the petitioner was not a defaulter in the payment of rent within the meaning of section 20 (2) (a) of the Act. A dispute was raised in regard to certain other items also, for instance, Bhumi Bhawan Kar etc. which respondent no. 1 claimed to be entitled. After several adjournments on one ground or the other 1st July, 1973 was the date fixed for hearing before the Judge Small Causes, respondent no. 2. On that date the petitioner made an application for adjournment which was allowed and 4th September, 1973 was the date fixed for hearing. On that date, the case could not be taken up and 12th November, 1973 was fixed for hearing. It appears that on 4th September, 1973 the petitioner tendered certain amount in court as a deposit under section 20 (4) of the Act and that amount was deposited on some future date thereafter. On 12th November, 1973, the defence of the petitioner was struck off for non-compliance of the requirements of Order XV rule 5 of the Code of Civil Procedure and after taking evidence of respondent no. 1 the suit was decreed. That decree was, however, set aside in revision by the Distt. Judge and the case came up for hearing before the Judge Small Causes again on 13th February 1979. On that date, the suit was decreed. THE benefit of section 20 (4) of the Act claimed by the petitioner in view of the deposit made by him as aforesaid was refused on two grounds. Firstly the petitioner had challenged the title of the landlord by asserting that he was the owner of only 1/5th share and secondly that the deposit made under section 20 (4) of the Act was under protest and not unconditional. Against that order a revision was preferred by the petitioner before the Distt. Judge which had been dismissed by respondent no. 3 the IV Addl. Distt. Judge, Agra on 16th September 1980. Respondent no. 3 has upheld the finding of the Judge Small Causes that the petitioner was not entitled to the benefit of section 20 (4) of the Act inasmuch as the deposit made by him was not unconditional as contemplated by the said sub section. It is these two orders which are sought to be quashed in the present writ petition. It was urged by counsel for the petitioner relying upon a decision of this court in Smt. Inder Kaur v. Chandra Shekhar Trivedi, 1979 AWC 556 that a deposit made under protest could not be termed as conditional deposit. In that case it was further held that unconditional payment means that the amount can be paid to the landlord without any pre-condition being attached thereto. In the instant case a copy of the application which was made by the petitioner on 4th September 1973 for making the deposit has been filed as an annexure to the counter affidavit. In the said application it was stated that the total sum of Rs. 654. 75 was being deposited under protest as the arrears of rent. Bhumi Bhawan Kaur etc. claimed by respondent no. 1 was in excess of the amount due. Not only that in the prayer to that application it was specifically stated that the amount deposited be held in deposit and the defendant be relieved from ejectment and the question of rent etc. be decided according to law. "For the landlord respondent no. 1 emphasis has been placed by his counsel not so much on the averment made in the said application that the deposit was being made under protest but on the prayer of the application where it had been stated that the amount deposited be held in deposit." According to the counsel for respondent no. 1, the prayer contained in the application itself indicates that the deposit made by the petitioner had been made under pre-condition that the said amount be held in deposit and be not paid over to respondent no. 1, till the dispute raised by him was decided according to law. According to counsel for respondent no. 1, the prayer in that application could not have any other meaning assigned to it. In this circumstance, it is clear that the deposit made by the petitioner had not been made ' unconditionally' as contemplated by section 20 (4) of the Act. Having heard counsel for the parties, I am of the opinion that the submission made by counsel for respondent no. 1 is well founded. Two requirements of section 20 (4) of the Act are of significance. One is that the payment, tender or deposit of the amount mentioned in the said sub-section has to be made by a tenant "unconditionally" and the other is that what is to be deposited by the tenant is to be the amount "due from him". In this connection, it would be useful to refer to sub-section (6) of section 20 of the Act which reads as follows: "(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 suit." To me it appears that the purpose of sub-sections (4) and (6) of Section 20 read together is that whatever amount was due from the tenant according to him has to be deposited unconditionally so that the said amount may be paid to the landlord forthwith. If in regard to a particular item mentioned in section 20 (4) there was a dispute, it was open to the tenant to deposit such amount which according to him was due from him and not necessarily the amount claimed by the landlord. In respect of such a deposit if ultimately it was found that the defence of the tenant was correct, he will be entitled to the benefit of Section 20 (4) of the Act, notwithstanding the fact that the deposit made by him was not of the whole amount claimed by the landlord, because the amount deposited by him would in view of the finding recorded in the suit represent the amount due from the tenant. If on the other hand, his defence is found to be false and the ?amount claimed by the landlord is found to be correct, the tenant would be denied the benefit of sub-section (4) notwithstanding the deposit of the lesser amount which he may have made under Section 20 (4) of the Act. In Har Prasad v. Dharma Deo, 1981 ALJ 216 it has been held that :- "The test that seems to have been laid down by the Supreme Court as well as by the learned Single Judge, in the cases relied upon by the respondent, is that the money deposited should be readily available to the landlord. A reading of sub-section (4) of Section 20 leads to the same conclusion. It waives ejectment "if 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." It is clear that the amount has to be paid to the landlord or at least to be tendered to him or it has to be deposited in the Court, sub-section (6) of section 20 lay down that if any amount has been deposited by tender either under subsection (4) of that section or under Rule 5 of Order 15 CPC that has to be paid to the landlord without prejudice to the parties pleadings and subject to the ultimate decision of the suit. The amounts so deposited are certainly available to the landlord as soon as the deposit is made."
(3.) AS is apparent on the plain language of sub-section (4) of section 20 of the Act it contemplates payment, tender of deposit not only of the amount of rent due but also damages for use and occupation of the building calculated at the same rate as rent and payable up to the date on which the deposit under the said subsection is made. The petitioner at no point of time seems to have disputed his liability to pay damages at the rate of Rs. 8/-p.m. which was the admitted rate of rent, from the date of the institution of the suit till the date of the deposit under section 20 (4) of the Act. Consequently, the said amount was admittedly due from him. He no doubt deposited this amount but attached a condition even in regard to this amount that the same may be kept in deposit meaning thereby that the same may not be paid to the landlord respondent no. 1 till the suit was finally decided. The deposit even of the admitted amount of damages as such was not made by the petitioner unconditionally even though it was due from him. Further even in regard to the arrears of rent claimed by the landlord in the notice of demand, the finding recorded by the authorities below is that the petitioner had failed to substantiate his defence that he had paid the said amount to the Munim of the respondent no. 1. The pre-condition attached by the petitioner that the said amount may be kept in deposit till the suit was decided was, therefore, even in regard to this amount not justified. For all these reasons, I am of the view that the respondents 2 and 3 cannot be said to have committed either any manifest error of law or error of jurisdiction in taking the view that the deposit made by the petitioner had not been made unconditionally as contemplated by Section 20 (4) of the Act and that he was consequently not entitled to the benefit of the said sub-section in the matter of passing a decree for eviction against him. In the result, the writ petition fails and is dismissed but there shall be no order as to costs. The petitioner is granted one month's time to vacate the accommodation in question. Petition dismissed.;