JUDGMENT S.U. Khan, J.
1. This writ petition filed by the tenant was dismissed by me on 23.3.2004 in respect of eviction decree and it was allowed in respect of arrears of rent. The findings of both the courts below to the effect that rate of rent was Rs. 500/- per month were reversed by me and it was held by me that rate of rent was Rs. 50/-per month. Regarding the plea of tenant in respect of benefit of Section 20(4) of U.P. Act No. 13 of 1972 I held as follows in paragraph 8 of my judgement dated 23.3.2004:
Learned counsel for the petitioner was granted time to show as to whether petitioner complied with the provisions. Section 20(4) of the Act even if rate of rent is taken to be Rs. 50 - per month. Learned counsel for the petitioner was unable to show that complete deposits as required by Section 20(4) of the Act were made even if rate of rent is taken to be Rs. 50/- per month. Hence there is no question of giving benefit of Section 20(4) of the Act to the tenant-petitioner.
Thereafter this review petition was filed.
2. Learned counsel for the tenant applicant supplied a chart showing that tenant was required to deposit only Rs. 3699/- in order to avail benefit of Section 20(4) of the Act, if the rate of rent was taken to be Rs. 50/- per month while he had deposited Its. 3815/-, as mentioned in the judgement of the trial court. In view of that landlord-respondent was directed to file counter affidavit.
3. Learned counsel for the landlord concedes that in case rent is held to be Rs. 50/- per month and it is also held that tenant was required to pay court fees only at the rent found due towards 'cost' as provided under Section 20(4) the tenant will be entitled to the protection of Section 20(4) of the Act. However, he has argued that the amount deposited by the tenant was short as court fees had been calculated on the basis of rent of Rs. 50/- per month. According to the learned Counsel for landlord-respondent, even if it is held that rate of rent is Rs. 50/- per month, still tenant is required to pay actual fees paid by the landlord on the basis of rent of Rs. 500/-per month. In is regard learned Counsel for landlord has cited the following authorities:
(i) Gopal Yadav v. Special Judge (Anti-Corruption)/Additional District and Sessions Judge, Varanasi and Ors. 2002 (1) A.R.C. 197
(ii) Sardar Amrik Singh v. IVth Additional District Juedge, Kanpur Nagar and Ors. (1996 (2) A.R.C. 188).
4. Cost of the suit, which naturally includes court fees, is required to be deposited by the tenant under Section 20(4) of the Act as well as under Section 39 and 40 of the Act. All these provisions are quoted below:
20 BAR OF SUIT FOR EVICTION OF TENANT EXCEPT ON SPECIFIED GROUNDS:
XXX XXX XXX (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 9 per cent per annum and the landlord's costs of the suit in respect thereof, after deducting there from 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 hat ground:
Provided that nothing in tins 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.
39. Pending suits for eviction relating to buildings brought under Regulation for the first time: In any suit for eviction of a tenant from any building to which the old Act did not apply, pending on the date of commencement of this Act, where the tenant within one month from such date of commencement or from the date of his knowledge of the pendency of the suit whichever be later, deposits in the court before which the suit is pending, the entire amount of rent and damages for use and occupation (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of 9 per cent per annum and the landlord's full cost of the suit, no decree for eviction shall be passed except on any of the grounds mentioned in the proviso to Sub-section (1) or in Clauses (b) to (g) of Sub-section (2) of Section 20, and the parties: shall be entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary.
Provided that a tenant rent payable by whom does not exceed twenty five rupees per month need not deposit any interest as aforesaid.
40 Pending appeals or revisions in suits for eviction relating to buildings brought under Regulation for the first time Where an appeal revision arising out of a suit for eviction of a tenant from any building to which the old Act did not apply is pending on the date of commencement of this Act. it shall be disposed of in accordance with the provisions of Section 39, which shall mutatis mutandis apply.
5. In respect of cost of a suit both the provisions are part materia. The Supreme Court in Banarsi Lal v. Saghiran Begum while interpreting Section 39 and 40 of the U.P. Act No. 13 of 1972 has held that the expression "landlord's full costs of the suit" means only such costs which the landlord is entitled to receive from the tenant.
6. Learned counsel for tenant has cited an authority of this Court reported in Ram Kishan v. District Judge (1976 (2) A.L.R. 763). In the said authority it has been held that it is no where stated in Section 20(4) that the tenant must deposit rent at the rate claimed by the landlord. If the tenant deposits the rent at a lower rate than claimed by the landlord and defendant's version regarding rate of rent is ultimately accepted then he will be entitled to the benefit of Section 20(4) of the Act. Exactly similar principle will have to be applied in respect of court fees. If the tenant paid the costs including the court fees as ultimately held taxable by the court, he will be absolved of his liability to eviction under Section 20(4) of the Act. In the aforesaid authority of the Supreme Court aw illustration has been given to the effect that if landlord on the plaint affixes more court fees than required by law, tenant is not liable to pay the same. On the same principle if ultimately it is found that landlord was entitled to lesser rent than claimed, then tenant will have to be absolved from his liability to eviction if he has paid the court fees required to be paid on the amount ultimately found due.
7. In the aforesaid authority of Sardar Amrik Singh there is only a passing observation regarding payment of court fees. In the authority of Gopal Yadav (supra) it is mentioned in para 4 that "Comparing these two charts annexed with the writ petition it is clear that there is no dispute about the amount of rent due for 18 months (1.7.1983 to 30.4.1988) at the rate of Rs. 15/ - per month. Both the plaintiff-landlord and the defendants-tenants have shown it as Rs. 870/-. In view of this provision it is not clear that how the question of amount of court fees was involved in the said case. If there is no dispute in respect of rent due, then there can not be any dispute in respect of court fees payable. Apart from it, in the authority of Gopal Yadav, Banarasi Lal's authority of the Supreme Court (supra) has not been considered.
8. There is one more important aspect of the matter, which escaped the notice of die learned Judge who decided Gopal Yadav's case. Under Section 20(4) of the Act, it is provided that the 'tenant...pays...entire amount of rent...of the building due from him...together with interest thereon...and the landlord's costs of the suit in respect thereof.' By virtue of this Sub-section tenant is required to deposit rent which is due from him and cost of the suit in respect thereof. There the word 'thereof naturally, refers to rent due from him (tenant). Accordingly tenant is not required to pay court fees in respect of that amount of rent which is not ultimately found due from him just as he is not required to deposit the rent which is ultimately found not to be due from him.
9. Accordingly, in my opinion, the authority of Gopal Yadav (supra) is per in curium. Accordingly review petition is allowed Judgement and order dated 23.2.2004 is set aside.
10. On the earlier occasion I had held that rate of rent will have to be taken to be Rs. 50/- per month as in the sale deed through which landlord purchased the property it was mentioned that rental value of the sold premises could not be more than Rs. 80/- per month. Purchasers-landlords can not be permitted to say that in order to avoid payment of proper stamp duty on the sale deed lesser rent was mentioned in the sale deed, otherwise it will amount to premium on fraud. As it is no one's case that rate of rent is Rs. 80/- per month, hence it is held to be Rs. 50/- per month. By virtue of mention of the rent in the sale deed to be maximum Rs. 80/- per month landlord is estopped from 'asserting that it is Rs. 500/- per month.
11. The case taken up by the tenant that he had paid 15 years advance rent amounting to Rs. 9000/- has been disbelieved by both the courts below. The said finding is approved.
12. Accordingly I hold that the rate of rent was Rs. 50/- per month and the tenant was entitled to the protection of Section 20(4) of the Act.
13. Accordingly writ petition is allowed. Judgement and decree passed by Judge Small Causes Court Bijnor in S.C.C. Suit No. 17 of 2001 dated 17.4.2002 and judgement and order passed by the Additional District Judge, Court No. 4, Bijnor dated 12.2.2004 in S.C.C. Revision No. 26 of 2002 are set aside. Suit for eviction is dismissed. Landlord-respondent No. 3 Shrimati Khursheeda is permitted to withdraw the amount deposited by the tenant @ Rs. 50/- per month.
14. I have held in Khursheeda v. A.D.J. (2004 (2) A.R.C. 64) that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act, writ court is empowered to enhance the rent to a reasonable extent. Under interim order dated 14.7.2004 passed on review petition tenant is paying rent @ Rs. 700/- per month The said rent is made permanent and it is directed that with effect from March. 2006 onward, tenant-petitioner shall pay rent to the landlady-respondent No. 3 @ 700/- per month. Rent is being enhanced on the ground that property in dispute is a shop and rent of Rs. 50/- per month is highly inadequate.