JUDGMENT S.U. Khan, J.
1. Heard learned Counsel for the parties.
2. This Is tenant's writ petition arising out of suit for eviction instituted by landlord-respondent No. 3 Ajeet Kumar against Smt. Jagga Devi who died during pendency of the suit and was survived by petitioner and proforma respondents 4 to 9. The suit was registered as S.C.C. suit No. 850 of 1984 on the file of J.S.C.C, Kanpur. Admitted rate of rent is Rs. 18.13. In the plaint of the suit eviction was sought on the ground of default and recovery of arrears of rent was also prayed for.
3. First landlord had given a notice on 8.9.1981, thereafter another notice was given on 20.12.1983. Suit was filed on 9.10.1984. Tenant pleaded that he had deposited the entire amount of rent under Section 30 of U.P. Act No. 13 of 1972 as the same had been refused by the landlord. The case under Section 30 was registered as Misc. Case No. 273/70/80, Jagga Devi v. Ajeet Kumar Jain. Through first notice dated 8.9.1981 landlord had signified his willingness to accept the rent directly. Inspite of the said notice tenant continued to deposit the rent under Section 30 of the Act. Details of the deposit under Section 30 of the Act have been given in para 6 of the writ petition which are quoted below:
5. The trial court found that deposit under Section 30 of the Act was not valid hence suit for eviction was decreed through Judgment and decree dated 18.2.1998. Suit for recovery of rent was also decreed and plaintiff was permitted to withdraw the amount deposited by the tenant in the suit. Against judgment and decree dated 18.2.1998 tenant-petitioner filed S.C.C. Revision No. 69 of 1998 which was transferred for disposal before VIIth Additional District Judge, Kanpur Nagar. In the revision tenant-petitioner filed an application under Order XIII. Rule 10, C.P.C. for summoning the file of the case under Section 30 of the Act. In the said application copy of which is Annexure-4 to the writ petition it was clearly stated in para 3 that tenant had deposited the rent until 31.5.1984 and landlord had withdrawn the said rent. In the plaint it was also stated that petitioner was not able to obtain certified copy of such document which could show that the amount deposited by him under Section 30 of the Act had been withdrawn by the landlord. Unfortunately revisional court did not consider it proper to summon the file of the said case under Section 30 of the Act. Revision was dismissed by VIIth A.D.J., Kanpur Nagar on 25.2.2000. In para 11 of its Judgment revisional court noted the argument of tenant's counsel that the entire rent deposited by the tenant under Section 30 had been withdrawn by the landlord. Revisional court held that whatever amount had been deposited after notice dated 8.9.1981 was not valid hence there was no need to summon any record in respect of deposit and its withdrawal.
6. The legal position about deposit under Section 30 of the Act is quite clear. In case tenant continues to deposit the rent under Section 30 of the Act even after receiving notice of the landlord signifying his willingness to accept the rent directly the said deposit is invalid and tenant becomes defaulter for non-payment of the said amount inspite of his deposit of the said amount under Section 30 of the Act. However, if deposit made under Section 30 of the Act, however irregular, invalid or illegal it may be, is withdrawn by the landlord then rent stands paid and there is, absolutely no question of tenant being defaulter.
7. In view of the above it was essential for the Courts below to decide as to whether the entire amount deposited by the tenant under Section 30 of the Act had been withdrawn by the landlord or not. In my opinion application to summon the file of case under Section 30 of the Act was wrongly rejected by the revisional court.
8. Accordingly, writ petition is allowed. Judgment and order passed by the revisional court dated 25.2.2000 is set aside and the revision is remanded for decision on the above point. In case before the revisional court landlord disputes the assertion of the tenant that he has withdrawn the total amount deposited by the tenant under Section 30 of the Act then the revisional court shall summon the file of the case under Section 30 of the Act and verify the said fact. If the entire amount was withdrawn by the landlord then suit for eviction shall be dismissed otherwise, it shall be decreed. In case landlord has withdrawn only some of the amount deposited by the tenant then effect of the same shall be determined by the revisional court in the light of observation made above, i.e., whether at the time of notice dated 20.12.1983 tenant was defaulter for four or more months after treating the withdrawn amount as validly paid.
9. During pendency of the revision eviction of the tenant shall remain stayed on the condition that with effect from February, 2006, onward he deposits rent before the revisional court at the rate of Rs. 500 per month by 7th of each succeeding month which shall at once be paid to the landlord. This direction is being issued in view of the judgment of the Supreme Court in Atma Ram Properties v. Federal Motors . It is further directed that if revision is allowed and suit is dismissed then tenant shall continue to pay the rent to the landlord at the aforesaid rent of Ps. 500 per month. Both the parties are directed to appear before the revisional court on 27.2.2005. Revisional court is directed to decide the revision as expeditiously as possible.