Ashok Bhushan, J. - (1.) HEARD Sri Yatindra, learned Counsel for the petitioner and Sri Triloki Nath appearing for the landlord -respondent No. 3. Counter and rejoinder affidavits have been exchanged between the parties. With the consent of the parties the writ petition is being finally disposed of. By this writ petition the petitioner -tenant has prayed for quashing the judgment and order dated 25.10.2000 passed by Judge Small Causes Court, decreeing the suit of the landlord -respondent directing eviction and the judgment and order dated 30.4.2004 passed by 1st Additional District Judge, Kanpur Nagar dismissing the appeal filed by the petitioner.
(2.) BRIEF facts necessary for deciding the writ petition are: The petitioner is tenant of one room accommodation of House No. 122/706 Shastri Nagar, Kanpur Nagar at the rate of Rs. 100/ - per month and was paying the rent to house owner Deep Chandra. Deep Chandra sold the house in question to respondent No. 3 on 30th June, 1988 informing the petitioner that the house has been transferred to Harish Motwani resident of House No. 108/144 Shishamau, Kanpur Nagar. In 1990 the respondent No. 3 refused to receive the rent. On 7th October, 1991 a notice was issued by the respondent No. 1; asking the petitioner to vacate the premises and give possession to landlord failing which proceedings under section 21(1) and (b) of the U.P. Urban Building (Regulation of Letting Rent and Eviction) Act, 1972 (hereinafter referred to as "the Act, 1972") shall be initiated. After refusal of the landlord to receive the rent, petitioner filed an application under section 30(1) of the Act, 1972 in the Court of Civil Judge (Junior Division), Kanpur Nagar on which Case No. 23/70 of 1994 was registered. With the permission of the Court the petitioner deposited the rent in the aforesaid case under section 30(1) of the Act, 1972. The landlord appeared in Case No. 23/70 of 1994. Landlord in his affidavit stated that he is ready to receive the rent in cash from the tenant. The Court was informed that the rent upto January, 1997 is deposited in Court. The Court disposed of the case vide its order dated 25.10.1996 directing the landlord to receive the rent deposited in Court upto January, 1997 and subsequent to January, 1997 the landlord may directly receive the rent from the tenant. The landlord feeling aggrieved by the order dated 25.10.1996 filed a revision before the District Judge being Revision No. 5 of 1997. Before the Revisional Court landlord contended that Court cannot compel the landlord to receive the rent from the tenant. He further contended, that he is not ready to receive the rent from the tenant. The revision was, however, dismissed by the Revisional Court vide its judgment dated 29.11.1997. Immediately, after dismissal of the revision a notice dated 20.12.1997 was issued by the landlord stating that the petitioner has not paid rent from 1st January, 1990 onwards despite repeated demands. The notice further stated that the tenant has dishonestly deposited part of rent in Miscellaneous Case No. 23/70 of 1994. Water tax and sewer tax with effect from 1.6.1988 was also demanded. Notice specially stated that the deposit made by the tenant under section 30(1) of the Act, 1972 is illegal and no benefit is available to the petitioner in respect of the said deposit. The tenancy of the petitioner was sought to be terminated after expiry of thirty days. The said notice dated 20.12.1997 was served on the tenant on 26.12.1997. Notice was replied by the tenant vide his reply dated 12.1.1998. Reply stated that the rent upto January, 1997 is deposited under section 30(1) in Case No. 23/70 of 1994. It was also stated that against the order passed under section 30(1) of the Act, 1972 revision filed by the landlord, has also been dismissed on 29.11.1997. It was denied that the landlord was not residing at the House No. 108/144 Shishamau, Kanpur Nagar. It was also denied that the landlord remains from 9.00 a.m. To 7.00 p.m. at the House No. 122/706 Sindhi Colony, Shastri Nagar, Kanpur Nagar. The notice further stated that the entire taxes from 30.6.1988 to January, 1998 and rent from February, 1997 to January, 1998 is being sent by money order. The amount of rent and taxes mentioned in the notice reply was Rs. 3252/ -. The aforesaid amount sent by the tenant by money order is alleged to be refused by the landlord on 19.1.1998 and returned to tenant on 21.1.1998. The Suit No. 47 of 1998 was filed by the plaintiff landlord on 11.2.1998 praying for decree of ejectment and arrears of rent. Written statement was filed by the petitioner. The Judge Small Causes Court registered the suit on 11.2.1998 and issued summons for 18.3.1998. On 18.3.1998 the tenant appeared and made an application for giving copy of the plaint. Copy of plaint was given to the tenant in the Court itself. Petitioner -tenant also moved an application for depositing the entire amount due in Court and tender for depositing entire amount was submitted by the tenant. The Counsel for the landlord objected to passing of the tender for depositing the amount and stated that the landlord is ready to take the amount in cash, on which Counsel for tenant stated that the tenant was not aware that the landlord will immediately ask the money. The Court passed an order directing the tenant to pay the amount in cash to the landlord on 20th March, 1998 at 2.10 p.m. in presence of the Court. 20th March, 1998 was fixed since 19th March, 1998 was local holiday. On 20th March, 1998 the amount in cash was received by the landlord under protest. On subsequent date the amount of the rent were deposited by the tenant though tender in Court. Landlord's statement was recorded on behalf of the plaintiff whereas the tenant appeared in the witness box on behalf of the defendant. The Judge Small Causes Court vide its judgment dated 25th October, 2000 directed ejectment of the petitioner. A revision was filed by the tenant under section 25 of the Small Causes Court Act which has been dismissed by the Revisional Court vide its judgment dated 30th April, 2004. This writ petition has been filed by the tenant challenging the aforesaid two judgments.
(3.) THE case of the landlord before the Trial Court was that the tenant is in arrears of rent and tenancy has been terminated by valid notice dated 20th December, 1997. 18th March, 1998 was the first date of hearing in the suit on which date the tenant did not deposit the amount so as to entitle him the benefit of section 20(4) of the Act, 1972. The amount sent by money order to the landlord were not on his address "122/706 Sindhi Colony, Shastri Nagar, Kanpur Nagar hence it cannot be accepted that the tenant has paid the amount after notice. The deposit under section 30(1) by the tenant in Case No. 23/70 of 1994 cannot be accepted as valid deposit nor the same can be adjusted under section 20(4) of the Act, 1972. The case of the tenant before the Court below was that on landlord's refusal to accept the rent was deposited under section 30(1) of the Act in Case No. 23/70 of 1994 and in the said proceedings the rent upto January, 1997 is deposited. The proceedings under section 30 of the Act, 1972 were disposed of by the Civil Judge (Junior Division) vide its order dated 25.10.1996 directing the landlord to receive the rent upto January, 1997 and thereafter directly from the tenant. Landlord filed revision on 25.10.1996 which has been dismissed on 29.11.1997. After receiving the notice dated 20.12.1997 the petitioner sent entire rent upto January, 1998 including taxes by money order which was refused on 19th January, 1998 by the landlord and returned back to the tenant on 21.1.1998. The petitioner having tendered the entire amount due he was not in arrears and no decree for ejectment can be passed. 18th March, 1998 cannot be accepted as the first date of hearing since it was on that date that the copy of plaint was received by the petitioner. The petitioner being ready to deposit the entire rent, he made an application for deposit of the entire amount on 18th March, 1998 by tender, which was opposed by the landlord. The petitioner was informed by his Counsel that the case will be taken after lunch and after passing of the tender by the Court for depositing the amount there will be no time left for depositing the amount in the Bank and under the practice prevalent in the Court the said amount could be deposited on the next day or two thereafter. The tenant claims to have requested the Court that some time be allowed to the tenant to go home to bring the money on which prayer the Court directed the tenant to be present in Court with money on 20th March, 1998 at 2.10 p.m. (19th March, 1998 being local holiday). The tenant is entitled for the benefit under section 20(4) of the Act, 1972 and is not liable for ejectment. The suit of the plaintiff is liable to be dismissed.;