S.K.MOOKERJI, J. - (1.) HEARD learned counsel for the parties.
(2.) BIREFLY stated the facts of the case are that the petitioners are the tenants of the disputed house No. 119, Balupura, Ramteram Road, Ghaziabad on a monthly rent of Rs. 50/-. The respondent No. 2 is the landlord. After giving a notice by the respondent No. 2 landlord to the petitioner-tenants, under Section 106 of the Transfer of Property Act read with Section 20 of the U.P. Act No. XIII of 1972, hereinafter referred to as the Act, the respondent No. 2 landlord filed a suit No. 77 of 1977 in the Court of the Judge, Small Cause, Ghaziabad on 25.8.1977. The suit was filed for arrears of rent, ejectment and mesne profits for use and occupation. A written statement was also filed on 4.11.1977 and on the same date, it is averred in paragraph 14 of the written statement that full compliance of Section 20(4) of the Act was made by the petitioners tenants. In the replication the respondent No. 2 landlord has stated that originally Sri Nand Kishore, husband of Smt. Vidyawati, petitioner No. 5, and father of other petitioner-tenants was the tenant of the portion of the house in dispute. After his death the defendants inherited tenancy rights and as such they became the tenants in common and are living together. It is also averred in the replication that the defendants have got their ancestral house in Mohalla Pakki Mori, Ghaziabad. Moreover, they have constructed a building No. 13/52, plot No. IIA-105, at Nehru Nagar in the Municipal limits of Ghaziabad. In view of the above facts, it was also averred in the replication that the petitioner-tenants were not entitled to the benefit of Section 20(4) of the Act. The suit was also based on account of structural alteration. The matter came up before the Judge, Small Causes Court, Ghaziabad and, the suit of the landlord was dismissed by the trial Court (sic) shall make it clear that following issues were framed for decision in the suit : 1. Whether the defendants are entitled for the relief of Section 20(4) of the U.P. Act No. XIII of 1972 ? 2. Whether defendants have materially and structurally altered the disputed property causing the disfiguration of the same ? if so, its effect ? 3. To what relief, if any, the plaintiff is entitled ?
(3.) WHILE deciding issue No. 1 the trial Court has held "It is admitted fact, as transpired from record, that defendants have deposited an amount of Rs. 3,605/- on account of arrears of rent from 1.9.1973 to 31.10.1977, amount of interest and cost of the suit on 4.11.1977, which was the first date of hearing". The trial Court further recorded the argument of the counsel for the landlord that the amount deposited by the tenants were short by Rs. 11/- but later on this plea was waived as this amount was also offered to the plaintiff on 4.11.1977, which was not accepted by the plaintiff. The case of the defendants was that they wanted to pay in cash on 4.11.1977 itself to the plaintiff before the Court to make good the shortage but the amount was not accepted and ultimately on 9.11.1977 the petitioner-tenants deposited the balance amount of Rs. 11/- in the Court. However, the trial Court did not enter into the question whether the shortage of Rs. 11/- was tendered to the landlord on 4.11.1977, i.e., the alleged first date of hearing and the landlord had not accepted the same. The trial Court proceeded, as pointed out above, on the basis of the alleged waiver by landlord in respect of the shortage of Rs. 11/-. In this view of the matter, the trial Court came to the conclusion that the amount deposited in the trial Court under Section 20(4) of the Act was sufficient as required under the law. Proviso to Section 20(4) of the Act is as under :- "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." ;