R.M.Sahai, J. - (1.) AGGRIEVED by striking off defence under order XV rule 5 C.P.C. and ex parte decree, the tenant has come to this Court. Suit filed for arrears of rent and eviction in January, 1970 in Munsif's court was transferred in January, 1973 to Judge Small Causes court, after enforcement of U.P. Civil Laws (Amendment) Act, XXXVII of 1972. It was fixed for 17th April, 1973 but was adjourned to 19th July, 1973 when the defence was struck off by Judge Small Causes Court because. the defendant had admitted that the rent was not paid. They have disputed only the rate of rent and also challenged the plaintiff's contents about default, The defendants had deposited Rs. 972/ - towards the arrears of rent and damages for use and occupation but this amount did not cover the entire period upto the month of June, 1973 rent at the admitted rate. He then proceeded to dispose of the suit on the evidence of the plaintiff only. Representation filed on same day expressing willingness to deposit current rent from April, 1973 to June, 1973 as rent prior to April, 1973 had already been deposited was not accepted as the case had already been disposed of.
(2.) FROM the order of Judge Small Causes Court it is apparent that defence was struck off for not depositing current rent. Revising authority, however, maintained the order as despite order of Court to deposit entire arrears by 17th April, petitioner deposited only Rs. 972/ - on 13th April which was not entire rent as deposit u/s. 7C of Act III of 1947. could not be tagged. It was also held that even accepting Rs. 17 -50 P. to be admitted rent for purposes of order XV the amount was insufficient. Although feeble attempt was made by learned counsel for petitioner to argue that as issues had been framed in the case prior to enforcement of Act XXXVII of 1972 either there could be no date of first hearing or it could be any date and not necessarily the first date when the case was taken up by Judge Small Cause court. It does not appear to have any merit obviously because first hearing in relation to suits instituted prior to enforcement of Act XXXVII of 1972 has been provided in the order itself, {or in the case of a suit instituted before the commencement; of the said Act, the first hearing after such commencement) Act 17th April was filed after transfer of case from Munsif to Judge Small Causes court it was first date of hearing within meaning of Order XV rule 5 C.P.C. of course the finding of revising authority that as the case was pending in the court of Munsif when Act XXXVII of 1972 was enforced it was the duty of petitioner to deposit the entire arrears etc. without waiting for transfer of case is manifestly erroneous. Deposit had to be made on first date of hearing. It has not been held by him that after framing of issues on 3rd November, 1971 and prior to transfer of the case on 3rd June, 1973 any date fixed for hearing before the Munsif In absence of any finding or any material that case was fixed for hearing, the finding cannot be maintained.
(3.) EQUALLY erroneous is the view that (sic) of Act III of 1947 could not be taken into account for determining deposit under order XV, rule 5 C.P.C. what is required to be deposited is the entire amount admitted by him to be due together with interest thereon at the rate of nine percent interest per annum and continue depositing current rent regularly within a week from its accrual. Expression 'admitted by him to be due' has been construed to mean the amount which defendant admits and not the amount which plaintiff claims (Idali Prasad v. Ramshah Billa, 1976. A.L.J. 494. At the stage of striking off defence it is not the legality or validity of amount but the admission by defendant alone which had to be considered for applicability of order XV. In this case petitioner admitted rent at Rs. 17.50 only. Further deposit under Section 7C was not admitted to be due. It could not, therefore, be treated as arrears. Even legally deposit under Section 7C which is in parimateria with Section 30 of UP Act XIII of 1972 is treated as payment to landlord. Sub section of both the sections provide. In any case where a deposit has been made as aforesaid, it shall be deemed that the rent has been duly paid by the tenant to the landlord, whatever ambiguity remained was clarified by Explanation 2 added to this order by U.P. Civil Laws (Reform and Amended) Act No. 57 of 1976. Rigour was further lessened by explaining that entire amount admitted by him to be due 'means the entire gross amount whether as rent or compensation for use and occupation calculated at the admitted rate of rent for the admitted period of arrears. Therefore, not only rate of rent but even period for which arrears are to be deposited is the period admitted by defendant. The Explanation further entitles the defendant to deduct deposit made u/s. 30 this settles the controversy. True this amendment is not retrospective ut it throws light on Legislature's intention and furnishes guideline for construing the otherwise penal provision liberally. In either view of the matter petitioner could not be treated in arrears for the period the amount was deposited under Section 7C. And if he could be, then it was liable to exclusion as it amounted to payment to landlord.;