K.N.Goyal, J. - (1.) I have heard learned counsel for the parties on the merits of the writ petition. The petitioners are tenants against whom a suit for ejectment is pending in the Court of Munsif. According to the landlords opposite parties 1 and 2 the premises consist of a piece of land. The petitioners defence has been struck off for non compliance with the provisions of Order 15, Rule 5, C.P.C. inasmuch as they did not deposit the rent even at the admitted rate for the period in suit or for the period of pendency of the suit. A revision was filed against the order of the Court of Munsif and that revision has also been dismissed by the 4th Additional District Judge on 25.11.83. Thereafter the suit was being heard and in the meantime this writ petition was filed on 12.12.1983.
(2.) IN this writ petition the contention of the petitioner is that they are tenants of a building not of land and that they have already deposited all the rent due under Section 30 of the U.P. Act No. 13 of 1972 in another court. In this view of the matter their defence should not have been struck off. It has also been contended that this plea of theirs had been accepted by the trial court on 2.3.79 as would appear from the order annexure -1. It was only at a later stage that when another application was given by the plaintiffs for striking out that defence under order 15 Rule 5 C.P.C. that the trial court passed an order against the petitioners. In view of this order annexure -1 they should be excused for not having the deposit in this very suit. It has further been prayed that in the alternative the petitioners should be allowed even now to make deposit in this very suit. It is clear from a perusal of various papers which are on record that the petitioners had in an earlier suit clearly admitted that they were tenants of a plot of land. That suit was for injunction filed by the petitioners themselves against the landlords with the allegations that the latter were trying to evict them by force. A decree was also passed in that case to the effect that the landlords could not evict the petitioners from the land in suit otherwise than in due course of law. It is thus not understood as to how the petitioners can now claim to be the tenant of "building" as wrongly mentioned in the very first paragraph of the petition and also in the succeeding paragraphs. In this connection learned counsel for the petitioners has invited my attention to the provisions of Section 29A and has also contended that even though the petitioners were originally tenants of land they were allowed to erect a tin -shed on that land and as such the provisions of U.P. Act No. 13 of 1972 came to be attracted. Even according to this contention no structure of a permanent character has been built. That apart, no application was ever given by the petitioners under sub -section (6) of Section 29A expressing willingness to pay enhanced rent at the statutory rate prescribed in that section. The applicability of Section 29A is dependant on the giving of such application and also on permanent structure having been erected as mentioned in subsection (2) with the consent of the landlord. As neither of these conditions is fulfilled a reference to Section 29A is beside the point.
(3.) IT follows that the deposit under Section 30 was not a valid deposit at all as the Act itself was not attracted to the land. Sub -section (6) of Section 30 says that in respect of a deposit made "as aforesaid" it shall be deemed that the person depositing it has paid it to the person in whose favour it is deposited or to the landlord as the case may be. The expression "as aforesaid" occurring in this sub -section has consistently been interpreted in this court as implying that the deposit is a valid deposit and in accordance with the provisions of sub -section (1) or sub -section (2). In the instant case the deposit not being a valid deposit sub -section (6) was not attracted to the case.;