Sibghat Ullah Khan, J. - (1.) THIS is tenant's writ petition arising out of suit for eviction and recovery of rent filed by Shyama Charan Rastogi, original landlord -respondent No. 3 since deceased and survived by legal representatives in the form of S.C.C. Suit No. 40 of 1979 on the file of J.S.C.C./Munsif, Budaun. Initially the suit was decreed. However, the said judgment and decree was set aside by A.D.J./Special Judge, E.C. Act, Budaun in Civil Revision No. 69 of 1985 decided on 1.9.1986 and matter was remanded to the Trial Court. After remand suit was again decreed by the Trial Court on 21.3.1988. Against the said judgment and decree tenant -petitioner filed S.C.C. Civil Revision No. 39 of 1988 IVth A.D.J. Budaun through judgment and order dated 23.1.1989 dismissed the revision, hence this writ petition. Eviction was sought on the ground of default and sub -letting. The question of subletting does not survive as it was not found proved by the Courts below.
(2.) IN respect of default, the findings are that notice of termination of tenancy and demand of rent was sent on 30.4.1979 and was served upon the tenant -petitioner on 2.5.1979. In the notice rent from 1.6.1978 to 31.3.1979 was asked for. Tenant sent the rent through money order which was returned back on 16.5.1979 with the endorsement that addressee was not available (left). Rent was again sent through money order on 21.5.1979, which was refused on 28.5.1979. Both the Courts below held that as the rent had been refused by the landlord, hence liability of the tenant to pay the same remained intact and he was defaulter. In this regard reference may be made to a Full Bench authority of this Court in the case of Indrasani v. Din Ilahi : 1968 AWR 167 followed in G. Singh v. A.D.J., 2000 (40) ALR 405. In the said authority it has been held that if rent is refused by the landlord then rent remains due but tenant does not remain defaulter. Accordingly, the suit for eviction on the ground of default was liable to be dismissed on the ground that at the time of filing the suit tenant was not defaulter. Another point argued by the learned Counsel for landlord -respondent is that Revisional Court has held that tenant denied the title of the landlord in the written statement, hence he was liable to eviction under section 20(2)(f) of U.P. Act No. 13 of 1972 and he was also not entitled to the benefit of section 20(4) of the Act as the deposit made by the tenant in pursuance of the said section was not unconditional.
(3.) AS far as benefit of section 20(4) of the Act is concerned, it is not necessary to decide as to whether tenant was entitled to the benefit of the said section or not. As held earlier, tenant was not defaulter when suit was filed, hence suit itself was not maintainable. So there arises no question of considering the applicability of section 20(4) of the Act.;