R.M. Sahai, J. - (1.) FACTS are not disputed in this landlord's petition arising out of suit for arrears of rent and eviction filed under U.P. Act XIII of 1972. The only question is if the revising authority committed any error in granting benefit of Sub -section (4) of Section 20 of the Act. And even if it did and there was technical omission should this Court in exercise of writ jurisdiction interfere with it.
(2.) THAT the opposite party was in arrears of rent on the date when suit was filed was not disputed. But after filing of suit and much before the first date of hearing within meaning of Sub -section (4) of Section 20 sum of Rs. 1804.56 was paid by opposite party to the Petitioner on 18th November, 1977 in lieu of which he issued a receipt as well. It has been found by revising authority that this payment was admitted to Petitioner. In this receipt apart from break up of payment of Rs. 1049.12 p. towards rent from 27th July, 1973 to 11th November, 1976 Rs. 305.44 towards damages for use and occupation from 12th November, 1976 to 26th October, 1977 and Rs. 450.00 p. for Court -fees, Vakil's fee and other expenses it was mentioned in the beginning, 'Received without prejudice' and in the end and other expenses of suit No. 656 of 1977 as settled mutually'. The revising authority calculated details of amount which the opposite party was liable to pay and held that he paid even time -barred rent as Petitioner in suit could not have claimed more than Rs. 790/ -for period from 21st May, 1974 to 11th November, 1976. In respect of expenses he found that only Rs. 280/ - was payable. Thus an excess of Rs. 170/ - was paid. It was further held that after making the payment when opposite party filed written statement he specifically pleaded that all dues in compliance of Section 20(4) have been paid. This was not only not denied or controvert ted but Petitioner even did not appear thereafter on three dates and the suit was dismissed in default. And as payment of expenses was as settled mutually it obviously was discharge of entire arrear including interest. He did not find any merit in claim of Petitioner that as payment was accepted without prejudice it did not amount to full payment. He held that these words were used not to indicate partial payment but because suit for eviction was based not only on default but material alterations which of course was not found established, It has been argued by learned Counsel for Petitioner that the revising authority committed manifest error of law in dismissing the suit and granting benefit of Sub -section (4) of Section 20 even though admittedly the interest due on the arrears was neither paid nor deposited by Petitioner. According to him the construction put by revising authority on the recital in the receipt onwards, without prejudice 'and settled mutually' surfer from an error of law inasmuch as the payment was accepted by Petitioner subject to any right that he might have.
(3.) THE argument is devoid of any substance. Construction put on the words 'mutually settled' and 'without prejudice in the circumstances of case is reasonable and proper.;