- (1.) SUDHIR Narain, J. The petitioner seeks writ of certiorari quashing the judg ment and decree, dated 22-1-1994, passed by respondent No. 2 decreeing the suit of the plaintiff-respondent No. 3 and the judgment, dated 20-5- 1994, passed by respondent No. 1, affirming the said judg ment in revision.
(2.) THE facts in brief are that the petitioner is a tenant of a portion on the second floor of House No. lll- A/419, Ashok Nagar, Kanpur Nagar. Respondent No. 3 is the landlady of this house. She filed Small Cause Suit No. 5 of 1988 against the petitioner for recovery of arrears of rent, ejectment and damages on the allegation that the petitioner committed default in payment of arrears of rent in spite of ser vice of notice on him, damaged the dis puted accommodation and made material alterations in the disputed property. THE petitioner filed written statement and denied the allegations of respondent No. 3. THE Judge, Small Causes Court recorded finding that the petitioner failed to pay the arrears of rent within one month from the date of service of the notice and thereby he committed default, made material alterations and damaged the property, he was liable for ejectment and decreed the suit on 22-1-1994. THE petitioner preferred revision before the District Judge. Respondent No. 1 has dis missed the revision by judgment, dated 20-5-1994. THE petitioner has challenged these judgments in the present writ peti tion. I have heard learned Counsel for the parties. Learned Counsel for the petitioner urged that the petitioner was never served with any notice of demand and termination of tenancy alleged to have been sent by respondent No. 3 on 10-8-1987 and 17-9-1987. The notice is alleged to have been served on 3- 10-1987 but in fact, the petitioner never received the notice. The finding of the Courts below to the contrary is erroneous. Respondent No. 3 had sent notice on 17-9-1987. The notice is alleged to have been served on the petitioner on 3-10-1987. Plaintiff produced Param Lal, Public Relation In spector of Post Office Anwarganj, Kanpur as P. W. 1. He made a statement that the acknowledgment bears the signature of the petitioner. The petitioner appeared as a witness as D. W. 3. He simply denied that any notice was served on him. He did not produce any expert or any other evidence to show that the acknowledgment due did not bear his signature. The trial Court has relied upon the documentary evidence and the statement of Public Relation Inspector and considering the evidence on the record came to the conclusion that the petitioner was served with notice on 3-10-1987 whereby respondent No. 3 had terminated his tenancy and demanded arrears of rent. This finding does not suffer from any il legality. The second submission of learned Counsel for the petitioner is that the petitioner had deposited the entire arrears of rent with costs etc. prior to the first date of hearing and was entitled to the benefit of Section 20 (4) of U. P. Urban Buildings (Regulation of Letting, Rent and Evic tion) Act, 1972 (hereinafter referred to as 'the Act') and was not entitled to ejectment on the ground that he had committed default in payment of the arrears of rent. The petitioner in paragraph 2 of the writ petition has stated that the suit was in stituted on 4-1-1988 and the first date of hearing was 5-2-1988. On 29-1-1988 the petitioner got a tender passed from the trial Court and deposited a sum of Rs. 11,750 by that tender on 30-1-1988. He has given the details of the amounts which he was required to deposit under Section 20 (4) of the Act and according to his cal culation it was Rs. 11,210. 25 p. The trial Court held that the amount deposited by the petitioner was conditional one and, therefore, he was not entitled to the benefit of deposit made by him under Sec tion 20 (4) of the Act. The petitioner in his written statement had stated that the rate of rent was Rs. 175/- per month and not Rs. 300 per month as claimed by the plaintiff. He, in the written statement, however, did not state that he had deposited the amount under Section 20 (4) of the Act condition ally. In paragraph 15 of the written statement he categorically stated that after service of summons on him he deposited the entire amount in the Court before first date of hearing and is entitled to get benefit of Section 20 (4) of the Act. In his deposition before the Court he stated that he had deposited the rent at the rate of Rs. 175 per month. This statement only re lated to the period of pendency of the suit. This does not relate to the deposit of the rent which was made under Section 20 (4) of the Act. The petitioner had deposited the rent for the period 1-10-1985 to 31-8-1988 as claimed in the suit at the rate of Rs. 300 per month. The view taken by respon dents 1 and 2 that the petitioner had deposited the rent at the rate of Rs. 300 per month conditionally is not correct.
(3.) LEARNED Counsel for the respon dent then urged that the cost of the suit was not correctly calculated by the petitioner. The cost of the suit should be taken as given in the decree after it is passed by the Court. This contention of learned Counsel for the respondent is not correct. Clause (b) of Explanation added to sub-section (4) of Section 20 of the Act provides that the expression "cost of the suit" includes one-half of the amount of counsel's fee taxabte for a contested suit. The cost of the suit will be such as the r incurred by the date or includes Court-fees, Counsel fee and other expenses incurred by the plaintiff. The petitioner has given the details of the ex penses incurred by the plaintiff by the date of first hearing. The respondent has not shown that he had incurred any other ex-pensaby that date to which the petitioner was liable to pay. The amount deposited by the petitioner fully covered the amount as he was liable to deposit under Section 20 (4) of the Act. Learned Counsel for the respon dent urged that the son of the petitioner had constructed his own house. The par ties led evidence. The Judge, Small Causes Court found that daughter-in-law of the petitioner had constructed house No. 117/0/352, Geeta Nagar, Kanpur in her own name. The daughter- in-law is not family member of the petitioner as defined under Section 3 (g) of the Act. The acquisi tion of a house by daughter-in-law of a tenant will not be covered by the proviso to sub-section (4) of Section 20 of the Act. The petitioner was thus entitled to the benefit of Section 20 (4) of the Act. The view taken by respondents 1 and 2 is er roneous in law.;