S.N.Saxena - (1.) HEARD the learned counsel for the petitioner and the learned counsel for the caventer.
(2.) THIS writ petition has arisen out of a suit for recovery of rent and ejectment of the petitioner from the disputed shop on the basis of default committed by him. The tenant had deposited certain amount on 12-8-1985 after having got the tender of the same passed on 5-7-1985. He, however, claimed benefit of section 20 (4) of Act No. 13 of 1972 before the court below which however, held that he was not entitled to the benefit of the aforesaid provisions of the Act and had committed default in payment of rent. It was held that firstly, the deposit was not made on the first date of hearing and secondly, the amount deposited by him was short of the required amount and therefore, in my view of the matter the tenant had committed default in payment of rent. In order to meet out the shortage in the amount of arrears of rent which should have been deposited by the tenant, he moved an application before the court of revision that certain amount had been paid in excess to the landlord which was actually on account of house tax and not as a part of the rent. The court below allowed the amendment application but did not agree with the said contention of the tenant. The tenant, it may be mentioned, had never made any application earlier for adjustment of the amount of tax allegedly paid by him to the landlord along with rent. For the first time, this pleas was taken by him after about two years since the decision given by the judge, Small Causes against him. Learned counsel for the caventer has placed reliance upon a decision in Nand Lal Agarwal v. Ganesh Kumar Saha, AIR 1988 SC 1821. Wherein it was held that without the tenant calling upon the landlord to adjust excess amount towards arrears of rent as well as tax, such a right in the suit filed by the landlord by way of adjustment advanced in the suit for eviction, cannot be made.
(3.) IN view of the above discussion, the tenant had got no right to raise the plea of adjustment of excess payment towards tax at the stage of revision. It appears that the tenant had got no legal and valid defence open to him before the court of revision and therefore, advanced the argument that the shop in dispute was no more there on the spot and it had fallen and become converted into an open piece of land. The court below, however, did not accept this contention as it was for the first time raised before the court during arguments in the revision application.;