- (1.) SUSHIL Harkauli, J. I have heard learned Counsel for both sides.
(2.) THE benefit of Section 20 (4) of U. P. Act No. 13 of 1972 has been denied to the petitioner tenant under the proviso to that sub-section. The finding of fact returned by the impugned order states that the son of the tenant has acquired a house in vacant state in the same city and the tenant himself has, by inheritance, got another accommodation in which at least two rooms are vacant. Learned Counsel for the petitioner has argued that the son of the petitioner should not be treated to be a "member of the tenant's family" within the meaning of the Proviso to Section 20 (4 ). For ready reference Section 20 (4) along with the proviso is reproduced below : "20. (4) In any suit for eviction on the ground mentioned in clause (a) of sub-section (2) if at the first hearing of the suit, 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 due from him (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord's costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) of Section 30, the court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground : 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. "
(3.) IN this connection two other provisions of the Act which are relevant are Section 3 (g) and Proviso to Section 12 (3) and Explanation (b) to that sub-section. These two provisions are also reproduced below : "3 (g) "family" in relation to a landlord or tenant of a building means his or her - (i) spouse (ii) male lineal descendants (iii) such parents, grand-parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendent, as may have been normally residing with him or her'. and includes in relation to a landlord any female having a legal right of residence in that building. " "12 (3) IN the case of a residential building, if the tenant or any member of his family builds or otherwise acquire in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy : Provided that if the tenant or any member of his family had built any such residential building before the date of commencement of this Act, then such tenant shall be deemed to have ceased to occupy the building under his tenancy upon the expiration of a period of one year from the said date. Explanation - For the purposes of this sub- section - (a ). . . . . . . . . . . . . . (b) the expression "any member of family" in relation to a tenant, shall not include a person who has neither been normally residing with nor is wholly dependent on such tenant. " In the light of above provisions for the purpose of interpreting the words "member of the tenant's family" as used in the proviso to Section 20 (4), the definition in Section 3 (g) would be used and by such use the son of the petitioner would be a member of the family of the petitioner, though the son may not be wholly dependent or normally residing with the tenant.;