JUDGMENT S.U. Khan, J.
1. This is landlords' writ petition. Suit filed by landlord petitioner against tenant respondent No. 3 on the ground of default was decreed by the trial court however the revisional court allowed the revision, reversed the judgment and decree passed by the trial court (J.S.C.C.) and dismissed the suit of the landlord. The only question involved in this writ petition is whether tenant was liable to ejectment on the ground of default or not. Petitioner landlord (since deceased and survived by legal representatives) filed S.C.C. Suit No. 23 of 1989 before J.S.C.C., Kanpur Nagar against tenant respondent No. 3. According to the plaint allegation rate of rent was Rs. 200 per month apart from taxes, that defendant tenant was defaulter with effect from 1.12.1987, that till 30.11.1988 amount of 12 month's rent amounting to Rs. 2,400 alongwith water tax with effect from 1.7.1978 was due against the tenant. In the notice and the plaint varying rates of water tax were mentioned, i.e., 7.5% till March, 1981, 15% till September, 1985, and 18% since October, 1985. According to plaint rent and tax had not been paid inspite of notice dated 15/19.12.1988. Landlord also admitted in his oral statement that after notice tenant sent some rent through money order, which was short of the demand hence it was not accepted. The tenant pleaded that prior to notice, after refusal of money order by landlord, he deposited the rent from 1.12.1987 to 31.5.1988 and water tax under Section 30 of the Act. The trial court/IInd Additional J.S.C.C., Kanpur Nagar decreed the suit for ejectment and recovery of rent, etc. through Judgment and decree dated 23.5.1992. The trial court held that the amount deposited under Section 30 after receipt of notice was not valid and as no money order after notice was refused by landlord hence the rent deposited under Section 30 after notice could not be taken into consideration. Tenant respondent No. 3 filed a revision against the said judgment and decree being S.C.C. Revision No. 103 of 1992. The said revision was allowed by Xth Additional District Judge, Kanpur Nagar through judgment and order dated 19.11.1996. By judgment of the revisional court suit of the petitioner was dismissed. The revisional court held that the amount had rightly been deposited under Section 30 hence tenant was not defaulter. Regarding water tax the revisional court held that even if there was default in payment of water tax tenant could not be ejected on the basis of the same. Thereafter revisional court also held that in any case defendant tenant had also deposited the water tax.
2. The trial court impliedly believed the version of the tenant that prior to notice rent sent by him through money order to the landlord was refused hence he rightly deposited the rent from 1.12.1987 to 31.5.1988 under Section 30 of the Act. However, the trial court held that the subsequent deposit of rent from 1.6.1988 to 31.1.1989 under Section 30 on 10.3.1989 was not valid as notice of landlord dated 15.12.1988 had admittedly been served upon the tenant on 19:12.1988. The assertion of the tenant that after receiving the notice on 19.12.1988 he sent M.O. of the rent from June, 1988 to December, 1989 on 13.1.1989 which was refused by the landlord was not considered by the trial court/J.S.C.C. as it held the same to be beyond the pleading/case of the tenant (Abhivachan ke pare). The precise sentence of the Judgment of the trial court translated in English is as follows :
"The evidence of defendant to the effect that he sent money order on 13.1.1989 is beyond his defence (Abhivachan) hence there is no need to consider the said evidence." As noted by the trial court itself on internal page 4 of its judgment (Annexure-6 to the writ petition), according to the landlord the tenant after receiving the notice sent some rent through money order, which was not according to the demand hence it was refused by him (landlord). When the landlord himself admitted to have refused the money order there was no question of holding that money order was not refused by the landlord. The tenant all along asserted that two money orders were refused by the landlord hence he deposited the rent under Section 30 in two instalments. In view of this it is not understandable as to how the trial court held that the evidence adduced by the tenant to that effect was beyond his defence (Abhivachan)."
3. In my opinion the lower revisional court rightly reversed the said finding of the trial court. However, matter does not end here. In the judgment of the trial court on page 39 of the paper book it has been mentioned that according to the plaintiff, summons of the suit was served upon the tenant on 27.2.1989. The suit was filed on 21.2.1989 and the first date fixed in the summon was 27.3.1989. The tenant deposited the rent from June, 1988 to January, 1989 under Section 30 of the Act on 10.3.1989. It has been held by me in Writ Petition No. 19656 of 2003, decided on 21.5.2003 and Writ Petition No. 24285 of 2002 being decided today that deposit of rent under Section 30 after knowledge of pendency of suit for eviction on the ground of default is not a valid deposit. Lower revisional court has also not dealt with this aspect of the matter.
4. The lower revisional court placing reliance upon an authority of this Court in 1996 (2) ARC 400 has held that tenant cannot be held to be defaulter even if he has not paid the amount of water tax. The view of the lower revisional court is not correct. In the aforesaid authority of this Court in 1996 (2) ARC 400, the cases had been decided on the ground that at the time of notice tenant was not in arrears of four months rent. The last sentence of para 8 of the aforesaid authority is to be read in that context. Even otherwise in the following authorities it has been held that water tax is a part of the rent.
(1) 1981 ARC 675 ;
(2) 1982 ARC 121 ;
(3) 1985 (1) ARC 201 (4) 1984 UPRCC 37 ;
(5) 1998 (1) ALR 514 (6) 1983 (1) ARC 523 (7) 1993 (2) ARC 629 (8) 1982 (1) ARC 555 (9) 1982 (1) ARC 248 (10) 1995 (2) ARC 52 ;
(11) 1996 (2) ARC 119 (12) 1997 (2) ARC 670.
5. Accordingly writ petition is allowed. Judgment passed by both the courts below is set aside and matter is remanded to J.S.C.C. to decide as to whether summons of the suit had been served upon the tenant on 27.2.1989 or on any other date before 10.3.1989 or not. If the summons had been served before 10.3.1989 the date on which rent was deposited by tenant under Section 30 then the said deposit will have to be ignored and tenant will be liable to ejectment on the ground of default. Regarding water tax the trial court must decide as to what was the exact amount of water tax payable by the tenant and whether he deposited the same validly within time or not.