B. N. Sapru, J. - (1.) THIS writ petition has been filed by Darshan Lal who was a tenant of Shyam Sunder Lal. It has been found that Darshan Lal was in arrears of rent and that Shyam Sunder Lal served a notice of demand as also notice terminating the tenancy. The defendant not having vacated the premises and not having paid the rent, a suit for eviction of the defendant tenant was filed. Notice of the application was served on the tenant petitioner and the date fixed was 8-3-79. On that date an application was filed by the petitioner through Sri C. D. Jain, Advocate in which it was stated that 8-3-79 was the first date of hearing in the suit and the defendant was unable to file his written statement. It was further said in the application that, however, the tenant is depositing the entire alleged amount in the court under the provisions of law. The landlord had instituted the suit for recovery of Rs. 900/-. The defendant had on 8-3-79 deposited a sum of Rs. 1450/- in the court. However, the learned counsel for the defendant later on stated under Order 10 rule 2 CPC whose certified copy has been produced by the learned counsel for the respondent, that the tenant had not made the deposit under section 20 (4) of the Act and he did not want the benefit of that section. In the written statement also in para 6 it was stated as follows ;- " That para no. 6 of the plaint is admitted only to the extent that rent is payable to the plaintiff by the defendant from January, 1979 but rest of the allegations being contrary are not admitted and denied. However, the defendant has deposited a sum of Rs. 1450/- in court under protest on 8-3-79 in order to save his eviction. "
(2.) THE courts below have passed a decree for ejectment, arrears of rent and mesne profits against the defendant. In this writ petition it is contended that the petitioner having made the requisite deposit under section 20 (4) of U. P. Act no. 13 of 1972 no decree for eviction could be passed. The amount deposited by the tenant on the first date of hearing, namely, 8-3-79 was sufficient to protect the tenant against a decree for eviction being passed against him. Section 20 (4) provides as follows : " In any suit for eviction on the ground mentioned in clause (a) of subsection (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. " The amount deposited being sufficient and it having been made on the first date of bearing, namely 8-3-79 the tenant would be entitled to the protection afforded by section 20 (4) of the Act. However, the learned counsel for the respondent has urged that in view of the averments made in the statement under Order 10 Rule 2 CPC as also in view of the assertions made in para 6 of the written statement the petitioner is not entitled to the protection of section 20 (4) of the Act. Section 20 (6) provides as follows :- " Any amount deposited by the tenant under sub section (4) or rule 5 of Order XV of the First Schedule to the Code of Civil Procedure, 1908 shall be paid to the landlord forthwith on his application without prejudice to the parties' pleadings and subject to the ultimate decision in the suits. " In view of the provisions of sub section (6) of section 20 of the Act what is stated by the defendant in the written statement would not prejudice the tenant's right under sub section (4) of section 20 of the Act. Rule 2 of Order X CPC provides for oral examination of a party or a companion of a party. Order X Rule 2 (1) applies only to the first hearing of the suit and Order X Rule 2 (2) applies to the subsequent hearing. The statement of the counsel was recorded on 2-7-79 which was not the first hearing of the suit but was a subsequent hearing within the meaning of Order X Rule 2 (2) CPC. The court could question the counsel as regard any material question relating to the suit. The statement of the counsel cannot stand on a higher footing than a pleadings of the parties. Thus to that statement also the provisions of sob section (6) of Section 20 of the Act are attracted. The consequence being that the statement made by the counsel could not affect protection of tenant by the provisions of section 20 (4) of the Act. The tenant has been found to have complied with the provisions of section 20 (4) of the Act.
(3.) IN the circumstances, the writ petition is allowed. The impugned order in so far as the eviction of the petitioner is concerned, is set aside. The parties will bear their own costs. Petition allowed.;