- (1.) S. U. Khan, J. Heard learned Counsel for the parties.
(2.) THIS is tenant's writ petition arising out of suit (S. C. C. Suit) No. 2309 of 1971 for eviction filed by original landlord respondent No. 2 Sri Jokhan Singh since deceased and survived by legal representatives. The suit was decreed on 13-9-1978. Revision filed against the said judgment was initially allowed on 1-4-1980 however on review petition the said order was set aside on 22-10-1981 and revision was directed to be heard again. The said order was confirmed by this Court in Writ Petition No. 5651 of 1980. Thereafter revision (S. C. C. Revision No. 424 of 1978) was heard and decided by A. D. J. /special Judge, Kanpur. The Revisional Court through judgment and order dated 20-12-1985 dismissed the revision hence this writ petition. The only point involved in this writ petition and argued by learned Counsel for both the parties is as to whether tenant had deposited complete amount under Section 39 of U. P. Act No. 13 of 1972 for getting benefit of the said Section and consequently of Section 20 of the Act or not. Revisional Court has recorded the finding that building would be deemed to have been constructed on 1-4-1978. The Revisional Court found that within one month from the said date i. e. by 30-4-1978 tenant had deposited the amount of Rs. 15,600/- which was more than required by Section 39 of the Act however an amount of Rs. 7,015/out of the total amount of Rs. 15,600/- could not be taken into consideration as it was deposited under Section 17 of Provincial Small Causes Courts Act (P. S. C. C. Act in short ). An authority of this Court in Lachchi Ram v. A. D. J. , 1984 (1) ARC 4, was cited before the Revisional Court. The Revisional Court distinguished the said authority on the ground that in the said authority it was held that amount deposited under Section 17 of the P. S. C. C. Act could be taken into consideration while granting benefit of Section 20 (4) of the Act. In my opinion same principle will apply while considering as to whether tenant is entitled to the benefit of Section 39 of the Act or not. Learned Counsel for the landlord respondent has argued that unless an application is made by the tenant to the effect that amount deposited under Section 17 of P. S. C. C. Act may be treated to have been deposited under Section 39 also, it cannot be taken into consideration. In this regard learned Counsel has placed reliance upon the authorities mentioned in the aforesaid authority of Lacchi Ram. It is undisputed that the amount deposited by the tenant under Section 17 of P. S. C. C. Act was never withdrawn by him. Tenant since beginning is asserting that he is entitled to the benefit of Section 39 of the Act. In view of this I am of the opinion that the amount deposited under Section 17 P. S. C. C. Act can very well be taken into consideration. Tenant in order to take benefit either under Section 39, or Section 20 (4) of the Act is not required to make double deposit. If some amount under Section 17 P. S. C. C Act has already been deposited, the same has to be taken into consideration while granting benefit of any of the aforesaid Sections to the tenant. I cannot approve too technical approach in this regard. Accordingly, I am of the opinion that tenant was entitled to the benefit of Section 39 of the Act.
(3.) ACCORDINGLY, writ petition is allowed. Judgments, decree and order passed by the Courts below are set-aside in respect of eviction. Decree in respect of arrears of rent is maintained. I have held in Khursheeda v. A. D. J. , Allabahad, 2004 (2) JCLR 452 (All) 2004 (54) ALR 177 : 2004 (13) AIC 42, that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act, Writ Court is empowered to enhance the rent to a reasonable extent.;