S.P.Srivastava - (1.) HEARD the counsel for the petitioner and perused the record.
(2.) FELLING aggrieved by a decree passed by the Judge Small Causes Court in S. C. Suit no. 294 of 1984 in which a decree of eviction of the petitioner from the premises in dispute and for recovery of arrears of rent and demages for use and occupation has been passed a revision was filed by him under section 25 of the Provincial Small Cause Courts Act which was dismissed by the revisional Court. Being aggrieved the petitioner tenant has now approached this Court for redress seeking reversal of the decree. It has been contended by the learned counsel for the petitioner that in the facts and circumstances of the present case, the tenant petitioner was entitled to the protection envisaged under section 20 (4) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U. P. Act no. 13 of 1972) which provides that 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, the entire amount of rent and demages for use and occupation of the building due from him (such damages for use and occupation have calculated at the same rate as rent) together with interest thereon at the rate of 9% per annum and the landlords' costs of the suit in respect thereof, 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. The submission of the learned counsel is that on the findings recorded by the trial court which have not been disturbed by the revisional court, there was a short fall of Rs. 57.49 p, only which was also deposited though belatedly on 11-4-85, It has been contended that this short fall had occurred on account of the wrong calculation made by the clerk of the defendant's counsel and the delay in making the deposit was liable to be condoned and extending the benefit of the aforesaid provision to the defendant he ought to have been relieved against his liability for eviction.
(3.) THE trial court, however, being of the view that in requirements contemplated under section 20 (4) of the U. P. Act No. 13 of 1972 had not been complied with, refused to extend the benefit available thereunder to the defendant. In support of its conclusion the trial court placed reliance upon the decisions of this Court in the case of Ram Nath v. Angan, 1984 ARC 290. THE finding of the trial court on the above question was affirmed in revision. A perusal of the provisions contained in section 20 (4) of the U. P. Act on 13 of 1972 clearly indicates that in case the requisite conditions contemplated thereunder are satisfied, the court may in lieu of passing a decree for eviction on the ground envisaged under clause (a) of sub-section (2) of section 20 of the Act pass an order relieving the tenant against his liability for eviction on that ground. The question as to whether the word 'may' as used in the aforesaid provision is to be read as 'shall' came up for consideration in several decisions. However, in view of the observations made by the Apex Court in its decision in the case of Vijai Laxmi Gangal v. Mahendra Pratap Garg, (1985) 3 SCC 364 wherein the difference in the phraseology used in section 20 (4) of the Act and section 39 of the said Act was noticed, it is apparent that the relief contemplated under section 20 (4) of the Act, is purely discretionary suggesting thereby that the word 'may' as used therein cannot be read as 'shall' and thus, make the provision mandatory. Although in the aforesaid decision the Supreme Court has observed that it is not possible to lay down any broad and general proposition that the discretionary relief should be denied to the tenant in all cases where he fails to prove his case, regarding the quantum ,of rent within the time as required by section 20 (4) of the Act yet in another decision of the Apex Court in the case of Mangal Sen v. Kanchhid Mal, (1981) 4 SCC 117, it was clearly observed that in a case where the tenant came up with the plea that there was no default by him in the payment of rent, disputing the existence of any arrears of rent and denying that there had been a default, the deposit even if was made on the date of the first hearing, was not an unconditional tender of the amount for payment to the landlord.;