JUDGMENT J.C. Gupta, J.
1. This is landlord's petition challenging the order of the revisional court dated 5.10.93 whereby decree of eviction passed by the trial court has been set aside.
2. The dispute relates to a shop in respect of which suit for eviction was filed by the petitioner against respondent Nos. 2 and 3 with the allegations that respondent No. 3. owner of the Firm-respondent No. 2 was inducted as tenant in the disputed shop from 1.12.1975 at a monthly rent of Rs. 200 plus water tax at the rate of Rs. 19.83 paise per month ; that the rent was subsequently enhanced to Rs. 300 per month from 1.12.1983 and then again to Rs. 400 per month with effect from 1.9.87 which was paid by the defendants till October, 1987 but water tax at the rate of Rs. 19.83 per month from 1.12.1975 to 25.7.88 amounting to Rs. 3.000.17 palse was not paid despite service of notice ; that the defendant tenant also had not paid rent from 1.11.1987 despite service of notice of demand ; and that the tenancy of the defendant was terminated by notice dated 25.7.88. The plaintiff claimed a sum of Rs. 3053.82 as arrears of water lax and Rs. 3918.99 as arrears of rent and damages for the use and occupation in addition to the decree of eviction. The tenant respondent Nos. 2 and 3 contested the suit stating that they were tenants at the rate of Rs. 100 per month which also Included house tax, water tax and sewer tax. They specifically denied that the rate of rent was Rs. 200 per month or that the same was enhanced to Rs. 300 and then to Rs. 400 per month. According to their case, after the receipt of notice rent for the months of July. August, and September, 1988 was sent to the plaintiff by money order which was not accepted by him. hence the same was deposited under Section 30 of the U. P. Act No. XIII of 1972 (hereinafter referred to as the Act). it was further pleaded by the defendants that they had paid to the plaintiff a sum of Rs. 20.000 for repairs of the shop and it was agreed by the landlord that the tenant could adjust the said amount at the rate of Rs. 50 per month from the rent payable by them and if it was not so adjusted the defendants would be entitled to get back the said amount along with Interest at the rate of 18% per annum. it was further pleaded that no decree of eviction could be passed as the defendants have unconditionally deposited an amount of Rs. 25.000 under Section 20 (4) of the Act on the date of first hearing.
3. The trial court decreed the suit holding that initially rate of rent was Rs. 100 per month which was subsequently enhanced to Rs. 150 per month ; that the tenants committed default in payment of rent and were liable to eviction and that no benefit could be extended to them under Section 20 (4) of the Act as the deposit made by them was a conditional one. Aggrieved by the said Judgment and decree respondent Nos. 2 and 3 filed Revision No. 143 of 1991 under Section 25 of the Small Causes Court Act which has been allowed by the revisional court by the impugned judgment.
4. Shri Umesh Narain Sharma. appearing for the petitioner and Shri V. C. Tripathl appearing for respondent Nos. 2 and 3 were heard at length.
5. A perusal of the Impugned judgment of the revisional court would Indicate that the decree of eviction has been set aside on the ground that since the amount of Rs. 25,000 deposited by the tenant before the date of first hearing was far in excess of the amount required to be deposited under Section 20 (4) of the Act, the tenant was entitled to be relieved from the decree of eviction. In the opinion of the revisional court, the deposit made under the said provision was unconditional. The revisional court has further held that the rale of rent was Rs. 100 per month which was not inclusive of water tax.
6. Shri U. N. Sharma. learned counsel for the petitioner before this Court raised only one submission before this Court that the revisional court has committed a manifest error of law in extending benefit of Section 20 (4) of the Act to the respondent by holding that the deposit was not conditional.
7. It is not disputed before this Court that the respondent Nos. 2 and 3 before the first date of hearing had deposited Rs. 25,000 in lump sum. It is also not disputed that the said amount was far in excess of the amount required to be deposited as per the provisions of Section 20 (4) of the Act. In the written statement filed by the respondents, in paragraph 25 thereof it was specifically stated that the defendants have deposited on 6.10.89 an amount of Rs. 25,000 unconditionally which could be withdrawn by the plaintiff after making calculation. The trial court on the basis of this pleading Inferred that the deposit made by the tenant was not unconditional as the defendants wanted to get Rs. 20,000 adjusted from this amount. The revisional court on the other hand came to the conclusion that when the aforesaid amount of Rs. 25.000 was deposited, no condition was imposed putting any hindrance in the right of the plaintiff to withdraw the said amount. The revisional court has further found that from the mere fact that in the written statement, the tenant staled that the plaintiff could withdraw the deposited amount after calculation, it could not be conclusively inferred that the defendant had put a condition that the amount could only be withdrawn by the plaintiff after adjustment of Rs. 20.000.
8. In Indar Kumar v. Chandrashekhar, 1979 AWC 556, it was held by a single Judge of this Court that deposit under protest cannot be held to be conditional.
9. In the case of Mahendra Pratap Garg v. Smt Vijai Laxmi, 1983 ARC 74, suit for ejectment was filed with the allegation that the defendant was a tenant on a monthly rent of Rs. 360 and he fell in arrears since August. 1972. The tenant's defence was that the agreed rent was Rs. 125 only and not Rs. 360 as alleged by the plaintiff and that the defendant was tenant of a larger portion of accommodation than acknowledged by the plaintiff in the plaint. The trial court found that the rate of rent was Rs. 360 per month as alleged by the plaintiff. The defendant had, at the first hearing deposited the amount of -rent, damages, costs, etc. as provided under Section 20 (4) of the Act at the rate of Rs. 360 per month as claimed by the plaintiff. In the revision filed by the tenant, it was submitted before a single Judge of this Court that the deposit made by the tenant under Section 20 (4) of the Act was unconditional and the Court below erred in holding otherwise. The learned single Judge referred the case to Division Bench finding some inconsistency between two decisions of the Court, namely. Ram Kishan's case, 1976 ALJ 763 and Laxmi Narain's case. 1981 ARC 762. On behalf of the tenant. It was submitted before the Division Bench that pleading that the agreed rate of rent was different than that alleged by the plaintiff, is neither material nor relevant to adjudge if the deposit was unconditional. From the side of the plaintiff, however, it was argued that by pleading a lower rate of rent, the defendant imposed a condition on the deposit that he does not admit his liability to pay in excess of that admitted by him in the pleadings and the necessary consequence will be that any amount deposited in excess of the admitted amount was a deposit with denial of liability and a deposit accompanied by or subjected to a denial of liability is a deposit with a condition imposed on it. The Division Bench after referring to the provisions of Section 20 (4) of the Act held as under :
"15. Sub-section (4). Section 20 gives another occasion to the defendant to save his tenancy. It does not insist that the tenant should pay the amount demanded by the landlord in the suit. It asks the tenant to pay the amount due together with interest and costs. The payment, tender or deposit should be unconditional. An unconditional deposit made under sub-section (4) has to be paid out to the landlord forthwith. The payment of the unconditional deposit is under sub-section (6) without prejudice to the parties' pleadings and further is subject to the ultimate decision in the suit. The clear intent is that if the tenant pays or deposits the amount due a decree for ejectment should not be passed. Sub-section (6) makes it clear that irrespective of the tenant unconditionally depositing the amount due and the same being paid to the landlord the. pleadings of the parties remain operative. The suit is liable to go on if the pleadings raise triable issues. The payment has been made subject to the decision, namely, the findings. The payment of the unconditional deposit to the landlord is without prejudice to the parties' pleadings. i.e., the pleadings of both the parties are protected or safeguarded. By receiving payment of the unconditional deposit a landlord does not compromise his pleadings. The payment of the deposit does not imply any admission by the landlord of any part of the tenant's case. The same should be the tenant's fate. The making of the payment, tender or deposit cannot have any impact or effects on the tenant's pleadings."
18. "The submission that the deposit to be unconditional must be in acknowledgment of liability as claimed by the landlord will render sub-section (6) superfluous and otiose."
19. "Under the law of contract, making payment or tender after stating the accounts or under protest is no more than saying that the payment is offered as believed to be due by the person making the payment or reserving the right of contesting the justice of the claim without prejudice to the making of the payment. In all such cases the person who makes the payment does not impose any condition on payment. The payment is unconditional. In such cases the creditor can take the payment on that footing and say. "I take the money, "protest as much as you please" and neither party makes any admission of the claim in the other. A Scott V. Uxbridge and Rfckmansworth R. Co. A person making a tender has a right to exclude presumptions against himself by saying "I pay it as a whole that is due". But if he requires the other party to accept it as all that is due, that is imposing a condition, (1) Bowen V. Owan (2) Sri Prasad V. Monmotha Nath, (3) Bank of Mysore V. B. D. Noidu."
20. "In our opinion the term unconditional has been used in Section 20 [4) in a similar sense. If a tenant makes a deposit but at the same time, states that the amount is not to be paid out to the landlord unless he accepts it in full discharge of the liability, that could be imposing a condition. Or. If the tenant says that the amount deposited by him should be kept in deposit and should not be paid out till the decision of the suit, that will make the deposit conditional. But taking divergent pleas in the written statement as to the extent or quantum of liability to pay rent does not make the deposit conditional. The purpose of the deposit is to pay it to the landlord forthwith see sub-section (6). The deposit is to be unconditional in the sense that there be no impediment or condition to its immediate payment."
Before the Division Bench the decision of the Supreme Court in Mangal Sen v. Kanchhid Mal, 1981 ARC 632, was relied upon from the landlord's side and the said decision was distinguished by their Lordships of the Division Bench.
10. The holding of the Division Bench in the aforesaid decision was upheld with approval by the Hon'ble Supreme Court in the appeal filed by the landlord and the said Judgment is reported in 1985 (2) ARC 298. The Apex Court also considered the decision in the case of Mangal Sen (supra) and it was held that the principle laid down in the aforesaid decision could not be applied to the facts of the case of Vijay Laxmi as in the case of Mangal Sen. It was not clear whether the deposit of the correct amount was made within the time fixed under Section 20 (4) of the Act. It was also observed by the Apex Court that the Act is a social piece of legislation which leans in favour of tenants. Merely because the tenant had failed to prove his case that the rent was only Rs. 125 per mensem and not Rs. 360 per mensem, the discretionary relief could not be dented to him even though he had deposited the arrears of rent at the rate claimed by the landlord in the plaint together with interest and costs within the time mentioned in Section 20 (4) of the Act. it was further held that it is not possible to lay down any broad and general proposition that the discretionary relief should be denied to the tenant in all cases where he falls to prove his case regarding the quantum of rent even though he has deposited the rent at the rate claimed by the landlord in the plaint together with Interest and costs within the time as required by Section 20 (4) of the Act.
11. In the backdrop of the above legal position, if we examine the facts of the present case, the only reasonable conclusion would be that the tenant could not be denied benefit of Section 20 (4) of the Act as undisputedly he had deposited an amount of Rs. 25.000 before the date of first hearing which was far in excess of the total amount required to be deposited as per the provisions of Section 20 (4) of the Act. The trial court took a very strict and narrower view of the pleadings of the defendants. The defendants had clearly stated in their written statement that amount has been deposited unconditionally which the plaintiff could withdraw after calculation. It would thus necessarily follow that the defendants had put no embargo on the right of the plaintiff to withdraw the amount deposited by the defendants and since they had deposited much more amount than was actually to be deposited, they simply stated that the plaintiff after making calculation as per the provisions of the Act could withdraw that much amount which the defendants were required to deposit under Section 20 (4) of the Act. The mere fact that the defendants had also disputed the rate of rent would not deprive them of the benefit of Section 20 (4) of the Act if the amount deposit under the said provision was far in excess of the amount required to be deposited even if calculated at the rate of rent claimed by the plaintiff.
12. This Court, therefore, does not find any error of law in the view taken by the revislonal court while setting aside the decree of eviction passed by the trial court.
13. There is no merit in this writ petition and the same is accordingly dismissed with no order as to costs.