S.D.Agarwala - (1.) -This petition is directed against an order dated 23rd February, 1988 by which the court below has refused to decide the question whether the petitioner-tenant is entitled to the benefit of Section 20 sub-clause (4) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) as a preliminary issue. By the impugned order, it is directed that the above question will be decided at the time of final hearing of the suit.
(2.) I have heard learned counsel for the petitioner and Sri Murlidhar, Senior Advocate for the respondents. Learned counsel for the petitioner has urged that the court below has acted illegally and with material irregularity in exercise of its jurisdiction in not deciding the above question as a preliminary issue. Order XIV sub-clause (2) of the Code of Civil Procedure provides circumstances where discretion has been given to a court in a suit to dispose of a particular issue as a preliminary issue. This rule does not apply in the case of suits filed in Provincial Small Cause Courts. Even if for the sake of argument it is taken that the general principles laid down in the Order XIV sub-clause (2) applies, then too the case would not be covered under the general principle. The discretion to decide a preliminary issue has been given only in two cases where the issue relates to the jurisdiction of the court or where a bar to the suit has been created by any law for the time being in force. This is not the case here. Section 20 sub-clause (4) of the Act which is relevant for the purposes of decision of this case, is quoted below :- " (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 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. "
(3.) FROM a reading of sub-section (4) of Section 20 of the Act, it is clear that it is open to the court to relieve a tenant against his liability for eviction, if he has complied with the condition laid down in the above sub-section in lieu of passing of decree for eviction. FROM this, it is clear that what the Legislature intended was that at the time of final hearing if the court is passing a decree for ejectment, it will relieve the tenant of that decree if he complies with the condition laid down aforesaid. In the circumstances, this can only be possible at the time of the final hearing of a suit. This cannot be done at a preliminary stage. The conclusion whether benefit under aforesaid sub-section would be available to the tenant, is dependent upon the facts and the appropriate stage for deciding this question is at the time of final hearing. Learned counsel for the petitioner has stressed the fact that in the instant suit, the suit is only based on default. Even it be so, then too it is only at the time of final hearing when the court is passing a decree on the basis of default, then in view of that decree for eviction, if the petitioner has complied with the provisions of Section 20 (4) of the Act, he could be relieved of the liability for eviction. In the circumstances the mere fact that the suit is based purely on the ground of default, does not alter the situation. The contention raised by learned counsel for the petitioner, in my opinion, is without substance.;