Prakash Krishna, J. - (1.) This is tenants' petition. The plaintiff respondent, Kailash Chand Varshney instituted the S.C.C. Suit No. 44 of 2001 in the Court of Judge Small Causes for the ejectment of Jagdish Prasad (who died during the pendency of the proceeding) on the ground of default in payment of rent. The tenant in the said suit claimed benefit of Section 20 (4) of U.P. Act No. 13 of 1972, as he deposited the requisite amount on or before the first date of hearing i.e. 7th August, 2001. The trial Court held that the deposit made by the petitioner is sufficient as per requirement of Section 20 (4) and found that no decree for eviction can be passed against the petitioner vide judgement dated 22nd of September, 2005 and permitted the landlord to withdraw the amount deposited by the tenant. The said order was successfully challenged in S.C.C. Revision No. 75 of 2005 by the respondent landlord. The revisional Court has held that the tenant is entitled to get benefit of Section 20 (4) of the Act. It decreed the suit for ejectment in view of proviso to Section 20 (4) of the Act. The said provision is reproduced below:- "(4) In any suit for eviction on the ground mentioned in clause (1) of Sub-Section (2), if at the first hearing of the suit the tenant unconditionally pays or 3 [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 nine per cent per annum and the landlord's costs of the suit in respect thereof, after deducting therefrom 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, municipality, notified area or town area. [Explanation, - For the purposes of this sub-Section- (a) the expression 'first hearing' means the first the first date for any step or proceeding mentioned in the summons served on the defendant; (b) the expression 'cost of the suit' includes one-half of the amount of Counsel's fee taxable for a contested suit].
(2.) Challenging the aforesaid finding the heirs of the tenants have come in the present petition. The learned Counsel for the petitioner submitted that in the plaint there is no allegation that the tenant or any member of his family has built or has otherwise acquired in a vacant state any building in the same city. The landlord for the first time by way of replication has pleaded that the tenant has acquired a building just in front of the disputed premises across the road. The said plea of the landlord was not accepted by the trial Court on the ground that the replication was not filed with the leave of the Court. The learned Counsel for the petitioner submitted that the revisional Court has committed illegality in holding that the replication was filed with the permission of the Court. Elaborating the argument he submitted that in absence of proper pleading, no evidence could have been looked into on the said question as to whether the tenant has acquired any building or residential house or not. In contra, the learned Counsel for the landlord submitted that the replication was filed before the amendment made in Order VIII, Rule 9 C.P.C., with the leave of the Court.
(3.) A copy of the replication has been filed as Annexure -5 to the writ petition. In para 4 of the said replication it has been stated by the landlord that the defendant has also acquired another accommodation just in surrounding of the premises in question and for the reason too the defendant is not entitled to get any benefit under Section 20 (4) of the U.P. Act No. 13 of 1972. The said replication was verified on 13th day of May, 2002. It appears that the said re-plication was filed only after the deposit was made by the tenant under Section 20 (4) of the Act. The tenant was claiming benefit of Section 20 (4) of the Act, by making requisite deposit. The proviso attached to the said Section clearly stipulates that a tenant who has acquired in a vacant state a house in the same municipality will not be entitled to claim the benefit of the said provision. In other words, such tenant shall not be relieved from the decree of eviction. It follows, therefore, the question as to whether the case is hit by proviso to Section 20 (4) of the Act would arise only when a tenant makes deposit as per parameters of Section 20 (4) of the Act. From the record it is clear that the landlord sought adjournment which was granted to file the replication on payment of cost. The Cost was deposited and at that point of time no objection was raised by the tenant that such a replication is not permissible under law. The revisional Court has also noticed in the order that replication was filed by a the landlord on 13th of May, 2002 after obtaining leave of the Court and serving its copy on the tenant. At this stage reliance was placed on Ramesh Lal Kapoor v. IXth Additional District Judge, Ghaziabad and others 1996 (1) ARC 600 wherein it has been held by this Court that replication unless filed with the permission of the Court is not a pleading.;