- (1.) S. U. Khan, J. This writ petition filed by the tenant was dismissed by me on 23-3-2004 in respect of eviction decree and it was allowed in respect of arrears of rent. The findings of both the Courts below to the effect that rate of rent was Rs. 500/- per month were reversed by me and it was held by me that rate of rent was Rs. 50/- per month. Regarding the plea of tenant in respect of benefit of Section 20 (4) of U. P. Act No. 13 of 1972 I held as follows in paragraph 8 of my judgment dated 23-3-2004 : "learned Counsel for the petitioner was granted time to show as to whether petitioner complied with the provisions of Section 20 (4) of the Act even if rate of rent is taken to be Rs. 50/- per month. Learned Counsel for the petitioner was unable to show that complete deposits as required by Section 20 (4) of the Act were made even if rate of rent is taken to be Rs. 50/- per month. Hence there is no question of giving benefit of Section 20 (4) of the Act to the tenant-petitioner. " Thereafter this review petition was filed. Learned Counsel for the tenant applicant supplied a chart showing that tenant was required to deposit only Rs. 3,699/- in order to avail benefit of Section 20 (4) of the Act, if the rate of rent was taken to be Rs. 50/- per month while he had deposited Rs. 3,815/-, as mentioned in the judgment of the trial Court. In view of that landlord-respondent was directed to file counter- affidavit.
(2.) LEARNED Counsel for the landlord concedes that in case rent is held to be Rs. 50/- per month and it is also held that tenant was required to pay court fees only at the rent found due towards 'cost' as provided under Section 20 (4) the tenant will be entitled to the protection of Section 20 (4) of the Act. However, he has argued that the amount deposited by the tenant was short as court fees had been calculated on the basis of rent of Rs. 50/- per month. According to the learned Counsel for landlord- respondent, even if it is held that rate of rent is Rs. 50/- per month, still tenant is required to pay actual Court fees paid by the landlord on the basis of rent of Rs. 500/- per month. In this regard learned Counsel for landlord has cited the following authorities : (i) Gopal Yadav v. Special Judge (Anti- Corruption)/additional District and Sessions Judge, Varanasi & Ors. , 2002 (1) A. R. C. 197. (ii) Sardar Amrik Singh v. IVth Additional District Judge, Kanpur Nagar & Ors. , 1996 (2) A. R. C. 188. Cost of the suit, which naturally includes court fees, is required to be deposited by the tenant under Section 20 (4) of the Act as well as under Sections 39 and 40 of the Act. All these provisions are quoted below : "20 BAR OF SUIT FOR EVICTION OF TENANT EXCEPT ON SPECIFIED GROUNDS: xx xx xx (4) 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 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 9 per cent per annum and the landlord's costs of the suit in respect thereof, after deducting there from 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. Provided that nothing in this sub-section, shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, munic ipality, notified area or town area. 39. Pending suits for eviction relating to buildings brought under Regulation for the first time.- In any suit for eviction of a tenant from any building to which the old Act did not apply, pending on the date of commencement of this Act, where the tenant within one month from such date of commencement or from the date of his knowledge of the pendency of the suit whichever be later, deposits in the Court before which the suit is pending, the entire amount of rent and damages for use and occupation (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of 9 per cent per annum and the landlord's full cost of the suit, no decree for eviction shall be passed except on any of the grounds mentioned in the proviso to sub- section (1) or in Clause (b) to (g) of sub-section (2) of Section 20, and the parties shall be entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary : Provided that a tenant the rent payable by whom does not exceed twenty five rupees per month need not deposit any interest as aforesaid. " 40. Pending appeals or revisions in suits for eviction relating to buildings brought under Regulation for the first time. Where an appeal of revision arising out of a suit for eviction of a tenant from any building to which the old Act did not apply is pending on the date of commencement of this Act, it shall be disposed of in accordance with the provisions of Section 39, which shall mutatis mutandis apply. " In respect of cost of a suit both the provisions are pari materia. The Supreme Court in Banarsi Lal v. Saghiran Begum, A. I. R. 1988 S. C. 1318 while interpreting Sections 39 and 40 of the U. P. Act No. 13 of 1972 has held that the expression "landlord's full costs of the suit" means only such costs which the landlord is entitled to receive from the tenant.
(3.) LEANED Counsel for tenant has cited an authority of this Court reported in Ram Kishan v. District Judge, 1976 (2) A. L. R. 763. In the said authority it has been held that it is no where stated in Section 20 (4) that the tenant must deposit rent at the rate claimed by the landlord. If the tenant deposits the rent at a lower rate than claimed by the landlord and defendant's version regarding rate of rent is ultimately accepted then he will be entitled to the benefit of Section 20 (4) of the Act. Exactly similar principle will have to be applied in respect of court fees. If the tenant paid the costs including the Court fees as ultimately held taxable by the Court, he will be absolved of his liability to eviction under Section 20 (4) of the Act. In the aforesaid authority of the Supreme Court an illustration has been given to the effect that if landlord on the plaint affixec more court fees than required by law, tenant is not liable to pay the same. On the same principle if ultimately it is found that landlord was entitled to lesser rent than claimed, then tenant will have to be absolved from his liability to eviction if he has paid the court fees required to be paid on the amount ultimately found due. In the aforesaid authority of Sardar Amrik Singh there is only a passing observation regarding payment of court fees. In the authority of Gopal Yadav (supra) it is mentioned in para 4 that "comparing these two charts annexed with the writ petition it is clear that there is no dispute about the amount of rent due for 18 months (1-7-1983 to 30-4-1988) at the rate of Rs. 15/- per month. Both the plaintiff-landlord and the defendants-tenants have shown it as Rs. 870/ -. " In view of this provision it is not clear that how the question of amount of court fees was involved in the said case. If there is no dispute in respect of rent due, then there cannot be any dispute in respect of court fees payable. Apart from it, in the authority of Gopal Yadav, Banarsi Lal's authority of the Supreme Court (supra) has not been considered.;