JUDGMENT S.U. Khan, J.
1. This is tenants writ petition. Landlords/respondents 1 to 4 filed a suit for ejectment against the tenant/petitioner after terminating his tenancy through notice under Section 106, T.P. Act on the ground that Rent Control Act (U.P. Act No. 13 of 1972) was not applicable, as the building had been constructed less than 10 years before filing of the suit, i.e., in the year 1991. Suit was filed in the year 1997 being S.C.C. Suit No. 212 of 1997. The tenant pleaded that the building was quite old, that the landlord had purchased the same in the year 1987 and that only minor repair was carried out in 1991, hence the building could not be said to be newly constructed in the year 1991. The landlord also pleaded that an agreement was entered into in between the parties which was recorded in writing on 8.4.1991. The copy of the said agreement is Annexure-12 to the writ petition. In the agreement it was stated that the building had newly been constructed. In the plaint it was further stated that according to the said agreement dated 8.4.1991 it was agreed that defendant would not commit default for payment of rent for three months, otherwise plaintiff would get the shop vacated, however, defendant did not comply with the said condition and often paid the rent of four or more months together. In para 5 of the plaint it was stated that defendant was defaulter from 1.11.1996 till 31.3.1997 (i.e., 5 months) and that plaintiff had given the notice on 22.4.1997 to the defendant through which tenancy was terminated and arrears of rent were asked for, however, defendant neither vacated the shop nor paid the rent.
2. The defendant filed written statement and in para 3 thereof, denied that any agreement was executed on 9.4.1991. In para 7 of the written statement defendant pleaded that before the first date of the suit he had deposited the entire rent from 1.11.1996 till 30.6.1997, that the deposit was made on 30.7.1997 and that sewer tax and water tax and 9% interest had also been deposited by him under Order XV Rule 5, C.P.C. and during the pendency of the suit also he deposited the entire rent and rent stood paid till 31.12.1997. The W.S. was verified on 6.2.1998. It was also pleaded that prior to filing of the suit the tenant sent the rent through money order which was refused by the landlord. As stated earlier it was also pleaded by the tenant that only repair had been carried out in the shop and old door was replaced by shutter, hence it did not amount to new construction. In para 12 it was stated that U.P. Act No. 13 of 1972 was applicable to the building in dispute.
3. Both the courts below have found that the compromise was entered into in between the parties as alleged by plaintiff and the shop was newly constructed, hence U.P. Act No. 13 of 1972 was not applicable as 10 years had not expired from the date of construction when the suit was filed. The findings regarding new construction, execution of agreement in between the parties and non-applicability of U.P. Act No. 13 of 1972, recorded by both the courts below are based upon correct appraisal of evidence. The legal inference drawn from the facts found by the courts below is also in accordance with law requiring no interference in the exercise of writ jurisdiction. In this writ petition during arguments on 24.7.2003, when the agreement was being placed before the Court, the Court found that clause Nos. 7 and 9 of the said agreement might attract Section 114 of the T. P. Act. In order to enable the learned counsel to prepare and argue the said point the following order was passed on 24.7.2003 :
"In this case the question of applicability of Section 114. T. P. Act is involved. Arguments have been heard in part today. For further arguments put up on Monday, i.e.. 28.7.2003."
4. Thereafter the arguments were heard and judgment was reserved on 18.9.2003. Regarding benefit of Section 114 which might be available to the tenant learned counsel for the landlord has mainly argued that this point was neither raised before the courts below nor pleaded in the instant writ petition. In my opinion para 7 of the written statement (Annexure-16) clearly amounted to taking the plea under Section 114 of T. P. Act. In fact the tenant was claiming benefit of Section 20 (4) of U.P. Act No. 13 of 1972, even though the said section was not mentioned in para 7 of the written statement. The benefit conferred upon tenant under Section 20 (4) of U.P. Act No. 13 of 1972 and under Section 114 of T. P. Act is almost similar with minor difference in the requirement of deposit. It is true that both the sections cannot simultaneously apply. However, if U.P. Act No. 13 of 1972 is applicable then Section 20 (4) of the said Act will apply otherwise Section 114 of T. P. Act will apply. Just as in case of applicability of U.P. Act No. 13 of 1972, it is not necessary to mention and plead in the written statement that tenant was entitled to the benefit of Section 20 (4) of the Act, similarly in case where the said Act is not applicable, it is not necessary to specifically mention and plead in the written statement that tenant is entitled to the benefit of Section 114, T. P. Act. What is essential under both the provisions is complete deposit as required by the said provisions on or before the first hearing of the suit. In paragraphs 4, 5 and 6 of the plaint, it was clearly mentioned that according to the agreement, tenant was not to commit default in payment of rent for more than three months and that as tenant had committed default for more than three months, hence he was liable to ejectment. Combined reading of plaint and written statement clearly indicates that default of more than three months in contravention of the agreement was the basis of the suit and the tenant deposited the entire amount on or before first hearing of the suit and claimed benefit of the same. Mere non-mention of Section 114 of T. P. Act is not fatal. The tenant in para 7 of W. S. asserted that the deposit had been made under Order XV Rule 5, C.P.C.
5. Learned counsel for the landlord respondent has also argued that the tenant did not admit the execution of the agreement hence he cannot take benefit of the same. In my opinion when the entire case of the landlord is based upon agreement and the courts below have also based their judgment granting relief to the landlord on the basis of the said agreement then any benefit available to the tenant under the said agreement cannot be denied to him.
6. Accordingly, I hold that the tenant was entitled to protection of Section 114 of T. P. Act in case he compiled with the requirement of deposit under the said section. The courts below after holding that U.P. Act No. 13 of 1972, was not applicable, did not decide whether the amount deposited by the tenant was in accordance with Section 114 of T. P. Act or not.
7. Accordingly, writ petition is allowed. Both the judgments and decree passed by the Courts below are set aside. The suit is remanded to the trial court (J.S.C.C.) for deciding the following issue :
"Whether tenant-defendant has made the entire deposit as required by Section 114 T. P. Act at the hearing of the suit and is entitled to be relieved against eviction."
If the said issue is decided in favour of the tenant-defendant, then the suit for ejectment shall be dismissed.
8. It is made clear that the findings on other issue recorded by the courts below are hereby affirmed and shall not be reopened or reconsidered by the courts below. The trial court is directed to decide the suit expeditiously preferably within four months from the date of production of a certified copy of this judgment before it. Parties are directed to appear before the trial court/J.S.C.C., Kanpur Nagar on 15.12.2003 on which date, date for hearing must be fixed by the J.S.C.C.