JUDGMENT J. C. Gupta, J.
1. This is tenant's writ petition for quashing the Judgments and orders dated 21.8.87, Annexure-3, dated 16,2.89, Annexure-4, and dated 11.10.90. Annexure-5.
2. The respondent No. 3 filed suit for ejectment and arrears of rent against the petitioner in the Court of respondent No. 2. The same was dismissed on the ground of non-service of notice of demand and termination and also on the ground that the defend ant-petitioner was entitled to get the benefit of the provision of Section 20 (4) of the U. P. Act No. 13 of 1972, (hereinafter referred as the Act). Aggrieved by the said judgment, respondent No. 3 preferred revision before the District Judge and the same was allowed by the Judgment dated 21.8.87 wherein it was held that the defendant-petitioner was not entitled to the benefit of Section 20 (4) of the Act as the amount deposited by him fell short by Rs. 15.40. However, the case was remanded to the trial court to decide according to law the question of service and validity of notice and default. After the remand, the trial court by the Judgment dated 16.2,89 decreed the suit. The revision preferred by the petitioner has also been dismissed by the lower revlslonal court by the Impugned Judgment dated 11.10.90.
3. Learned counsel for the parties have been heard.
4. Learned counsel for the petitioner firstly argued before the Court that the lower revlslonal court while remanding the case to the court below wrongly held that the tenant was not entitled to the benefit of Section 20 (4) and committed an error apparent on the face of the record Inasmuch as it miscalculated the amount which was required to be deposited under the provisions of Section 20 (4) of the Act. It was also argued that this point was agitated before the trial court as well as in the revision filed against the Judgment of the trial court decreeing the suit but the said question has not been considered and decided by the courts below merely on the ground that on earlier occasion the lower revlslonal court had held that the amount deposited by the petitioner was short and thus he was not entitled to claim the benefit under Section 20 (4) of the Act.
5. Under Section 105(2), C.P.C. It is provided that no appeal shall lie from any order passed in appeal under this Section. If any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness. It appears that on the basis of the principle embodied in this sub-section, the Courts below have not gone into the question whether or not the amount deposited by the petitioner under Section 20 (4) was in fact short. While allowing the revision of the respondent No. 3 against the decree dismissing the suit, the lower revlstonal court remanded the case to the trial court. That judgment was undlsputedly not appealable, hence Section 105(2) C.P.C. will have no' application. In any view of the matter, even assuming for the sake of argument that the courts below, being courts of concurrent Jurisdiction had no power to go Into the correctness of the earlier order of revlslonal court remanding the case to the trial court, the Jurisdiction of this Court to examine the correctness of that order in this writ petition is not ousted. It is also well established law that if it appears to the Court that an error which is apparent on the face of the record has crept in and great injustice has been done to a parry on account of that error, it is the duty of the Court to correct that error in order to do complete Justice between the parties.
6. In the present case, undlsputedly before the date of first hearing, the petitioner had deposited a sum of Rs. 3,825 in Court and claimed benefit of Section 20 (4) of the Act. The trial court on the first occasion by the Judgment dated 27.5.1987 extended the said benefit to the tenant petitioner. The trial court held that the amount required to be deposited by the tenant under Section 20 (4) of the Act was Rs. 3,834.35 p. as per the following details:
(a) Arrears of rent and damages for use and occupation at the rate Rs. 60 per month from 1.2.83 to 28.1.1987 Rs. 2,874.00
(b) Court fee on 2476 (1756 + 720) Rs. 357.50 p.
(c) Lawyer's fee and clerkage Rs. 96.25 p.
(d) Interest on Rs. 2,874/[email protected] 9% Rs. 506.60 p-
Total Rs. 3,834.35 p.
Thus according to the trial Court, the amount deposited fell short by Rs. 9.35 p. which could be on account of a bona fide mistake in calculating the amount.
7. In the revision preferred against the judgment of the trial court by the landlord, the District Judge re-calculated the amount which was required to be deposited and according to the lower revlslonal court an amount of Rs. 3,840.40 p. should have been deposited under Section 20 (4) of the Act by the tenant but since only a sum of Rs. 3,825 was deposited, there was a shortage of Rs. 1 5.40 p. and consequently benefit of Section 20 (4) was not available to the tenant. The amount of Rs. 3,840.40 p. was calculated as per the following table mentioned in that Judgment:
(a) Arrears of rent and damages for use and occupation from 1.2.1983to 31.12.86 Rs. 2820.20p,
(b) Court fee Rs. 388.00
(c) Lawyer's fee and clerkage Rs. 96.25 p.
(d) Interest Rs. 506.60 p.
(e) Other expenses of the plaintiff in the suit Rs. 29.35 p.
Total Rs. 3,840.40 p.
8. Learned counsel for the petitioner submitted before this Court that the lower revislonal court while calculating the amount of Interest has committed an arithmetical error Inasmuch as the Interest on the monthly rent for Feb., 1983 would start only from 1.3.1983 and. therefore, interest on rent became due only for 46 months and if calculated at the rate of 9% per annum, the amount would come to Rs. 486.45p. only. For determining the exact amount of interest required to be deposited under the terms of Section 20(4). the following formula has to be applied :
Suppose 'A' is number of months for which interest became due on arrears of rent and damages, the formula to be applied is A x (A+1) x1/2 = B. B is the figure which is to be multiplied with the monthly Interest.
9. Applying the above formula, the exact amount which was required to be deposited as interest would come out to Rs, 486.45 p. as is clear from the following calculations :
The lower revlslonal court under the heading (a) also wrongly mentioned that the amount of rent and damages which became due was Rs. 2,820.20p. whereas the exact amount ought to have been Rs. 2,820. Taking other figures as mentioned in the aforesaid judgment to be correct, the total amount required to be deposited would come to Rs. 3,820.05. Since the petitioner had admittedly deposited the sum of Rs. 3,825 before the date of first hearing, there was no shortage in fact and the petitioner cannot be allowed to suffer on account of an arithmetical error committed by the lower revisional court while remanding the case and the said error is apparent on the face of record. The petitioner thus was entitled to the benefit of Section 20 (4) of the Act and decree of eviction on the ground of default could not be legally passed against him.
10. The Issue in question can be viewed from another angle. Assuming for the sake of argument that there was a shortage of only a nominal sum of Rs. 15.40 p., the petitioner could not be refused the benefit of Section 20 (4) of the Act especially in view of the fact that the trial court had calculated the Interest as Rs. 506.60 p. on Rs. 2,874 whereas the interest ought to have been calculated on Rs. 2,820 only. The trial court found that the court fee payable was Rs. 357.50 p. whereas as per the revision court, this amount should have been Rs. 388. Before this Court also, the learned counsel for the parties raised their submission on three dates for making calculations and after close scrutiny, the above figure of Interest of Rs. 486.45 p. could be arrived at. In these circumstances it could well be said that whatever shortage. If any. was bona fide on account of clerical mistake and miscalculation of the amount and since substantial compliance has been made, the tenant petitioner could not be deprived of the benefit of Section 20 (4) of the Act by applying the rule contained in the maxim 'demlntmts non curat lex.
11. For the above reasons, this writ petition succeeds and is allowed. The impugned judgments are modified to the extent that the decree for the eviction against the petitioner is set aside and the plaintiff's suit for ejectment against the petitioner shall stand dismissed.
12. In the circumstances of the case, parties are directed to bear their own costs.