Vinay Kumar Agarwal vs XVIIth Additional District Judge,Allahabad & Ors.

O.P. Garg, J.

Originally late Ram Swaroop Agarwal was the tenant in premises No. 476 (old No. 364) Badshahi Mandi, Allahabad. After his death in the year 1980, his son Vinay Kumar Agarwal, the present petitioner inherited the tenancy rights. Gopal Chandra Bhattacharya and others claiming themselves to be the owner/landlords served a notice dated 1961995 by registered post on the petitioner Vinay Kumar Agarwal requiring him to clear the arrears of rent for the period May, 1980 onwards and terminating his tenancy. The notice was duly served on the petitioner and he had in fact sent the reply thereto asserting that the arrears of rent after statutory deductions in the form of taxes etc. have already been deposited in Court in proceedings under Section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Act No. XIII of 1972) (hereinafter referred to as ''the Act''). It was maintained by the petitioner that since no arrears of rent were due to be paid, the question of default in payment of rent on his part does not arise. Gopal Chandra Bhattacharya and others filed SCC suit No. 104 of 1995 alleging that the petitioner was tenant at the rate of Rs. 30 per month exclusive of house, water tax and electricity charges; that the defendanttenant has not paid the arrears of rent as claimed in the composite notice of demand and to quit dated 1961995. On the ground that the tenant has committed default in payment of arrears of rent within the meaning of Section 20(2)(a) of the Act, his eviction was sought besides claiming one year''s rent amounting to Rs. 350 with pendente lite and future mesne profits. After due contest, the suit was dismissed by the trial Court on 852000. Aggrieved, the landlords preferred revision application No. 671 of 2000 under Section 25 of the Provincial Small Causes Courts Act which has been allowed by the impugned order dated 7122000 a copy of which is Annexure 1 to the writ petition. The decree for possession of the tenanted accommodation after ejectment of the petitioner and for recovery of arrears of rent amounting to Rs. 360 pendente lite and future mesne means profit at the rate of Rs. 30 per month was passed by the revisional Court. It is in these circumstances that the present writ petition has come to be filed by the defendant tenant under Article 226 of the Constitution of India with the prayer that the decree passed by the revisional Court be quashed.

Counter and rejoinderaffidavits have been exchanged.

Heard Sri Yogesh Agarwal, learned Counsel for the petitioner tenant and Sri Ratnakar Bharti appearing on behalf of the respondentlandlords.

Sri Yogesh Agarwal, learned Counsel for the petitioner urged that the notice of demand and to quit was illegal, in as much as, it was not sent for and on behalf of the entire body of the landlord''s or on their instructions; that since all the landlords did not join in instituting the suit for eviction against the petitioner, it is bad in law and therefore, could not be maintained. It was also urged that the tenanted portion was not properly identifiable as it has been shown as part of house Nos. 476 and 477 Badshahi Mandi, Allahabad while, in fact, the petitioner is tenant of house No. 476. Sri Yogesh Agarwal criticized the findings and conclusion arrived at by the revisional Court with regard to the default on the part of the petitioner in payment of arrears of rent for a period more than four months. The jurisdiction of the revisional Court to pass a decree for ejectment, arrears of rent and mesne profit was also challenged on the ground that it was not competent to reappraise the evidence on record with a view to set at naught the findings of fact recorded by the trial Court. In substance the argument of Sri Yogesh Agarwal was that if the revisional Court found that the trial Court has erred in not properly recording the finding with regard to the commission of default in payment of arrears of rent, the proper course for him was to remand the case for decision afresh by the trial Court. All these submissions have been repelled by Sri Ratnakar Bharti with equal vehemence.

The crucial questions which have emerged for determination by this Court in the light of the submissions made by learned Counsel for the parties are :

(1) Whether the tenanted accommodation is identifiable and has been properly described in the plaint?

(2) Whether the suit for ejectment is not maintainable as the entire body of the landlords has not joined in serving the notice and instituting the plaint? and

(3) Whether in the circumstances of the case, the petitioner may be labelled as a defaulter in payment of arrears of rent within the meaning of Section 20(2)(a) of the Act?

The question of identity of the tenanted accommodation is beyond doubt. The father of the petitioner was admittedly a tenant of premises No. 476 Badshahi Mandi, Allahabad. After his death the petitioner has become the tenant and continues to occupy the same premises which were in occupation of his father. In the plaint of suit No. 104 of 1996, a copy of which is Annexure 2 to the writ petition, the description of the accommodation from which dispossession of the petitioner is sought has been given as follow :

�House No. 476, of which eastern portion is known as part of house No. 476 and western portion is known as portion of house No. 477 Badshahi Mandi, Allahabad.�

On the strength of this description, Sri Yogesh Agarwal point out that the tenanted house which was originally numbered as 476 has now been divided into two portions of house No. 476 and 477 and the identity of the original tenanted accommodation is lost. Sri Agarwal appears to have entertained some confusion on the point on account of introduction of house No. 477. The mist stands cleared by the various averments made in paragraph 11 of the counteraffidavit filed by Gopal Chandra Bhattacharya. Since the details given in paragraph 11 furnish a complete answer to the submission of Sri Yogesh Agarwal, it would be proper to quote, in extenso, the averments and clarifications made in paragraph 11 of the counteraffidavit which read as follows :

�11. ............It is to be stated that the petitioner originally was a tenant of only House No. 476. He still is a tenant only of the same accommodation which was given to him under his tenancy and there is no change in the same. However, in the plaint the number of the house which has been in the tenancy of the petitioner was described as containing eastern portion of house No. 476 and western portion of house No. 477. It is only for this reason that initially there were 2 houses adjacent to each other, both belonging to the plaintiffs numbers 476 and 477. In a partition amongst the plaintiffs both the houses were divided. Instead of dividing the houses according to their numbers the dividing line was drawn longitudinally. This longitudinal division resulted half portion of house No. 476 being included in house No. 477 and half portion of house No. 477 being included in house No. 476. The longitudinal division only could be carried out in house No. 477 and the dividing line could not be extended to house No. 476 as the same was in the occupation and tenancy of the petitioner. Thus though the premises which has been in the tenancy and occupation of the petitioner after the partition theoretically included a portion of house No. 477, but due to nondivision remained as it was. It was for this reason that in the description of the premises in the plaint it had been merited that the relief of possession was being claimed with regard to the premises which included eastern portion of house No. 476. That description, however, is only for the reason that after the partition the numbers of the houses though remained the same, but portions of both the houses were exchanged inter se. This change, however did not alter the petitioner''s accommodation and he remained in occupation and tenancy of the original unpartitioned house No. 476. The allegation that the accommodation in the tenancy and occupation of the petitioner suit was not identifiable the suit could not have been decreed is wholly incorrect...�

In para 10 of the written statement (Annexure 3 to the petition), the petitioner himself has admitted that in spite of partition between the coowner/landlords, the tenanted portion which was let out to his father remains unaffected and he continues to be in the occupation of the original accommodation. The fact, thus remains that the petitioner continuous to be the tenant of house. No. 476 right form the time of his father and there has taken place on change, whatsoever, in the tenanted accommodation. It was by way of abundant precaution that the tenanted portion was described in the plaint with all specificity. The dispute about the identity of the tenanted accommodation is uncalled for.

Now let us examine the second point with regard to the maintainability of the suit for ejectment against the petitioner. Sri Yogesh Agarwal, learned Counsel for the petitioner urged that the notice of demand and to quit is bad in law as it was not on behalf of all the coowners/landlords. For the same reason it was also urged that the suit for ejectment is not maintainable as the entire body of the landlords has not joined in filing the suit. To fortify the above legal position, Sri Yogesh Agarwal placed reliance on the decision of this Court in Laiq Ahmad and another v. Smt. Surjo and others, 1978 (4) ALR 96. In that case, it was found that there were more than one landlord and since the suit for eviction, arrears of rent and mesne profit was filed on behalf of one landlord, only, it was not maintainable. Reliance was also placed an another decision of this Court in Abdul Sami v. Mohd. Ashfaq and others, 1978 NOC 3 (Allahabad). In that case, it was laid down that when notice to quit is given by one colessor claiming himself the sole owner, there is no valid termination of lease and therefore, the suit for ejectment and arrears of rent by that cosharer only is not maintainable. From the material available on record, it is evident that the tenanted house was under the ownership and landlordship of two real brothers Akhil Kumar Bhattacharya and Anil Kumar Bhattacharya. Both of them have died leaving behind their sons and daughters. Respondent Nos. 3 to 8 are the sons and daughters of late Akhil Bhattacharya while Respondent Nos. 9 to 11 are the son and daughters of late Anil Bhattacharya. The notice to terminate the tenancy of the petitioner was given by all the legal heirs of the deceased Akhil Kumar Bhattacharya and Anil Kumar Bhattacharya except Smt. Reena Bhattacharya and Smt. Reeta Bhattacharya daughters of late Anil Kumar Bhattacharya. They have been shown in the notice as notice Nos. 2 and 3. It is well settled proposition of law that notice to quit need not be from all the colandlords as was held by the apex Court in S.P. Roychoudhary v. Kamla Bala Roy, AIR 1978 SC 835. Earlier divergent views were reflected in Devi Charan v. IIIrd Additional District Judge, 1980 ARC 38 and Rang Nath v. State of U.P., 1984 (1) ARC 642 on the point. A Full Bench of this Court in Gopal Das and another v. Ist Additional District Judge, Varanasi and others, 1987 (1) ARC 281, was called upon to resolve the conflicting views expressed in the two cases. The Full Bench relying upon the decision of the apex Court in Ram Pasricha v. Jagannath, AIR 1976 SC 2335 and Kanta Goel v. B.P. Patnaik, 1988 (3) SCC 137, held that the decision of this Court in Rang Nath''s case (supra), laid down the correct law that a notice served by one or more of the landlords is valid in law. Law on the point was further theashed out by this Court in Girraj Kishore v. Dr. Trilok Nath Bimal, 1988 (2) ARC 178, in which it was ruled that notice terminating the tenancy given by one of the coowners without joining other coowners is not defective or invalid.

In the instant case, the notice was from the side of all the landlords and as a matter of precaution, two daughters of late Anil Kumar Bhattacharya who were not available were made the notices along with the present tenantpetitioner.

Sequel to the above, further submission of Sri Yogesh Agarwal is that the suit for ejectment has not been instituted by all the legal heirs and consequently, it is not maintainable. This submission also does not hold good for one simple reason that all the legal heirs of Akhil Kumar Bhattacharya and Anil Kumar Bhattacharya were made as party to the ejectment suit either in the form of plaintiffs or proforma defendants. The present Respondent Nos. 3 to 9 were the plaintiffs in the suit while Smt. Reena Bhattacharya and Smt. Rita Bhattacharya who were Respondent Nos. 10 and 11 in this writ petition were arrayed as defendant Nos. 2 and 3. The petitioner has not been able to show that there was any other legal heir of the deceased brothers who has been left out. The law on the point is well settled. A landlord/owner can maintain an eviction petition in the absence of any objection from other coowners. A reference may be made to the decisions of the apex Court in Kanta Udharam Jagasia (Miss) v. C.K.S. Rao, (1988) 1 SCC 403, Pal Singh v. Sunder Singh, (1989) 1 SCC 444; Kanta Goel''s case (supra); Ram Pasricha''s case (supra); Full Bench decisions of this Court in Gopal Das''s case (supra), Jyoti Prasad v. IInd Additional District Judge, Saharanpur, 1985 (1) ARC 186; Krishna Ballabh Dubey v. Ramendra Nath Das, 1997 (1) ARC 116; Lakshmi Shankar Bhatt v. Yashram Vatsa, 1995 SCFBRC 80; Nirmal Kumar Suri v. VIII Addl. District Judge, Kanpur Nagar and others, 1995(1) JCLR 57 (All) : 1995 AWC 118; H.C. Pandey v. G.C. Pant, 1989 SCFBCR 268, as well as the decision of the Rajasthan High Court in Amna Bai v. Mahaveer Singh, 1989 (2) AIRCJ (Rajasthan) 529. In the instant case, the two daughters of late Anil Kumar Bhattacharya who were impleaded as proforma defendants in the suit do not appear to have any clash of interest with other colandlords. They have not challenged the rights of the plaintiffs to institute the suit nor they have shown an attitude of hostility towards them. A person who is a coowner or co landlord if for some reasons is not available to joint as plaintiff in a suit, may as well be impleaded as a proforma defendant. The plea that the notice of demand and to quit is bad and the suit for ejectment is not maintainable on account of omission of some of the coowner/landlords is nothing but ornamental.

Now it is the time to probe the merits of the contention whether the petitionertenant has committed default in payment of arrears of rent within the meaning of Section 20(1)(a) of the Act. The provisions contained in Section 20(2) of the Act, indicate that in spite of the determination of tenancy of a tenant in accordance with the provisions constrained in the Transfer of Property Act, the tenant is permitted to continue in the accommodation under this tenancy which accommodation falls within the purview of the Act in the capacity of a statutory tenant with a bar in regard to seeking his eviction by filing a suit for the purpose but this bar stands lifted once the landlord succeeds in establishing the requirements envisaged under Section 20(2)(a) of the Act and satisfies the conditions prescribed thereunder. As observed by the apex Court, the rent Control Acts are necessary social measures for protection of tenants. The Rent Control laws, the Hon''ble Supreme Court has emphasized, have tried to balance the equity. The landlord is dutybound to satisfy the ground of eviction mentioned in various Rent Acts, and if he does not satisfy, he cannot get an order of eviction. But once the ground of eviction specified in the Act is made out no discretion is left with the authority to refuse the relief of eviction sought for. The apex Court in its decision in Madan Mohan and another v. Krishna Kumar Sood, JT 1993 (1) SC 162, observed that whatever protection the Rent Acts given, they do not give blanket protection for nonpayment of rent. This basic requirement has to be complied with by the tenants. The Rent Acts do not contemplate that if one takes a house on rent he can enjoy the same without payment of rent. The onus to show payment of rent is on the tenant though initially the landlord has to establish that the tenant has been in arrears of rent for a period of more than four months.

Section 20(2)(a) of the Act clearly provides that a suit for eviction of a tenant can be filed if the tenant is in arrears of rent for not less than four months and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand. Notice of demand will be invalid and could not be considered to be a notice of demand under the said provision if the tenant was not in arrears of rent for more than four months. The tenant could not be held to be a defaulter in the eye of law if he was not in arrears of rent for more than four months on the date of the notice.

In the instant case, admittedly, a composite notice of demand and to quit dated 1961995 was served on the tenantpetitioner on 2261995. It is also the common case of the parties that the petitioner sent a reply to the notice on 1071995. In the notice dated 1961995, a copy of which is Annexure RA1 to the rejoinderaffidavit, the plaintiffrespondents have asserted that the petitioner who is a tenant at a monthly rent of Rs. 30 was in arrears of rent for the period May, 1980 onwards and consequently rent for the period May, 1980 to May, 1995 amounting to Rs. 5,430 (181 months X 30) was demanded. Admittedly, after the receipt of the notice the petitioner tenant has not paid any amount of rent as demanded by the landlords within the specified period of thirty days. However, he sent a reply, a copy of which is Annexure 1 to the counteraffidavit, taking the plea that he was not in arrears of rent as the entire amount which was due to be paid to the landlords had already been deposited after deducting the amount of house and water taxes, as well as the amount of annual white washing. Sri Yogesh Agarwal, learned Counsel for the petitioner urged that if the amount deposited by the petitioner after deductions is properly calculated, it would be apparent that the petitioner had in fact deposited a sum of Rs. 342.80 in excess of the amount payable to and as demanded by the landlords. The revisional Court has negatived the plea taken by the defendanttenant. The findings recorded and conclusion arrived at by the revisional Court have been seriously criticized by Sri Yogesh Agarwal. Sri Ratnakar Bharti, learned Counsel for the respondentlandlords supported the finding and urged that even if all the deposits and deductions, as claimed by the tenant petitioner are accepted, in that event, it would be apparent that he was positively in arrears of rent for a period of more than four months and since no payment was made after the receipt of the notice within the period specified, he has committed default within the meaning of Section 20(2)(a) of the Act. As a matter of fact, the factual aspects of the controversy cannot be sifted in writ jurisdiction but since finding of fact of default in payment of rent on the part of the tenantpetitioner is based on certain legal questions and both the parties have canvassed them before this Court with equal vehemence, in my quest to reach the truth, I would do better to sift certain facts.

In the reply to the notice the tenantpetitioner has asserted that he has deposited the entire amount of arrears of rent w.e.f. 1571978 to 1071995 (the date on which the reply to the notice was given) i.e. for a period of 203 months and 15 days amounting to Rs. 2622.81 after deductions. The amount which is alleged to have been deducted on account of house and water taxes for the period 1571978 onwards, according to the petitioner, comes to Rs. 3533.19 p. while that of white washing and repairs for the period 1975 to 1994 (19 years) comes to Rs. 510. To simplify the assertion of the tenantpetitioner, his case in the reply to the notice is that for the period 1571978 to 107 1995, he was required to pay a sum of Rs. 6,666 out of which he has deposited a sum of Rs. 2622.81P under Section 30 of the Act and the balance amount of Rs. 4043.19 has been deducted by him under the heads of house and water taxes as well as annual white washing and repairs. In the written statement, the defendant tenant has deviated from the stand taken in the reply to the notice, inasmuch as he has pleaded that the deductible amount on account of house tax and water tax on the period 1571978 to the date of reply of the notice comes to Rs. 2879.99 P besides Rs. 480 on account of annual white washing and repairs for the years 1980 to 1995, (i.e. 16 years) thus totaling to Rs. 3359.99 P. Sri Yogesh Agarwal pointed out that since the petitioner has fully established the deposit of Rs. 2622.81P as rent as well as deductions of Rs. 3359.99 P it has to be taken that on the date of the notice, he had paid a sum of Rs. 5982.80P to the landlord while their demand covered by the notice was only for a sum of Rs. 5430. In this manner, there was an excess payment to the extent of Rs. 552.80 P arises.

Sri Yogesh Agarwal, learned Counsel for the petitioner further made a reference to the agreement arrived at between Ram Swaroop Agarwal, father of the tenant petitioner as well a slate Akhil Kumar Bhattacharya on 1371956, a copy of which is Annexure 5 to the writ petition. A reference was made to para 1 of the said agreement to support the convention that the amount of rent was payable after deducting the house tax and water tax leviable in respect of the tenanted accommodation and on the basis of this agreement between the parties, it was asserted that the tenant petitioner was entitled to deduct the amount of house and water taxes. A reference was also made to para 5 of the agreement to strengthen the submission that the tenantpetitioner was entitled to deduct one month''s rent on account of annual white washing and in dispensable repairs. It was also urged that since the previous landlords refused to accept the rent, the tenantpetitioner was justified in depositing the rent in Court by taking recourse to the proceedings under Section 30 of the Act.

The deposit made under Section 30 of the Act does not automatically wipe off the arrears of rent which otherwise are payable to the landlords. At this stage, it would be proper to narrate the implications of Section 30. These provisions come into play and are available to the tenant to deposit the rent only when the landlord has refused to accept the rent afford to him. Subsection (1) of Section 30, provides that if any person claiming to be a tenant tenders any amount as rent to its alleged landlord and the latter refuses to accept the same, then the former for deposit such amount in the prescribed manner and continue to deposit the same for any subsequent period until the landlord in the meantime conveys in writing to the tenant his willingness and readiness to accept the rent directly. The provision of Section 30 is intended to protect the tenant from exploitation by the landlords and to prevent unreasonable eviction of the tenants. This provision does not impinge upon the right of the landlord to regularly receive the rent due from the tenant and in case the tenant defaults to pay the rent, he would be incurring a liability for his eviction. Primarily, a tenant is under a legal obligation to pay rent to the landlord as and when due and if he fails to pay the same, on demand from the landlord and if he is in arrears for a period more than four months, he would be liable for ejectment. No tenant can take shelter under Section 30 of the Act to plead that he has deposited the rent under Section 30 of the Act and therefore, he was not in arrears. The deposit under Section 30 of the Act is not an alternative to payment of rent to the landlord if the landlord, otherwise has not refused to accept the same. No tenant is entitled to disregard the landlord and bypass him by meaning deposit under Section 30 of the Act. The gist of the provision of Section 30 simply is that where the tenant assets and is able to prima facie satisfy the Court that the landlord has refused to accept the rent tendered by him, then only he may deposit the amount of rent under Section 30 of the Act and in that event, it shall be treated that the tenant has paid the rent to the landlord through the agency of the Court and in such circumstances, the consequence of nonpayment of rent would not follow. conversely, a tenant cannot rush to deposit the amount in proceedings under Section 30 of the Act (without the refused of the landlord) and then assert that he is not in arrears. The validity or otherwise of the deposit made under Section 30 of the Act is open to challenge in a suit for ejectment or before a competent Court where the question of validity of the deposit arises.

In the instant case, there is nothing on record to indicate that the tenantpetitioner had tendered the rent to the previous landlords, namely, Akhil Kumar Bhattacharya or Anil Kumar Bhattacharya and that either of them at any point of time refused to receive the same. No effort was made by the tenantpetitioner to remit the rent by money order so that the refusal of the landlord(s) could be obtained. Since the tenant petitioner has failed to prove the refusal on the part of the landlord(s), the deposit made by him under Section 30 of the Act is of no consequence and would not discharge him of the liability to pay arrears of rent. He cannot use the invalid deposit made under Section 30 of the Act as a shield against the landlords. Moreover, the very fact that the landlords have demanded the rent through a notice in writing served upon the tenant on 2661995, implies that they have signified their assent to receive the rent. The proper course for the tenant petitioner was to have withdrawn the money deposited under Section 30 of the Act and to remit the same to the landlords in compliance with the notice of demand. Nothing of the kind was done.

Sequel to the above point, there is yet another submission of Sri Yogesh Agarwal which is founded on clause 6 of the agreement dated 1371956, Annexure 5 to the writ petition. It reads as follows :

�6. That in the event of the other joint landlords Sri Anil Kumar Bhattacharya refusing to accept his portion of rent when remitted to him by the tenant, he (the second party) shall deposit the same in Court deducting any expenses incurred therefor.�

Sri Yogesh agarwal urged that since late Anil Kumar Bhattacharya did not accept portion of his rent, the tenant petitioner was left with no option but to deposit the amount in Court. The efficacy of the clause for the purpose for which reliance has been placed in nugatory, for one simple reason that it found a place in an agreement entered into between the father of the present tenantpetitioner, on the one hand as second party and late Akhil Kumar Bhattacharya, on the other way back in the year 1956. A reading of the whole agreement would indicate that it was with regard to the payment of arrears which had fallen due against the father of the tenantpetitioner since 1954. Certain adjustments were made and a total sum of Rs. 127 and 13 Annas was found to be paid to the two landlords half and half. This agreement was in respect of the amount payable up to July, 1956. Since thereafter much water has flown as the father of the tenantpetitioner died in the year 1980. Even if clause 6 of the agreement is to be made operative, it has to be shown that the portion of the rent was remitted to late Anil Kumar Bhattacharya which he refused to accept. It is not the case of the petitioner that the rent was ever paid to the two landlords separately. Reference to the provisions of clause 6 of the agreement of 1956 for the purpose of justifying the deposit under Section 30 of the Act is wide off the mark.

For the above reasons the tenantpetitioner cannot escape from his liability to pay arrears of rent as demanded by the landlords by asserting that the arrears of rent have been deposited in proceedings under Section 30 of the Act as the deposit was made without offering the rent to the landlords and refusal by them to receive the same.

The tenantpetitioner has claimed deduction of one month''s rent every year for the period of 1980 to 1995 (16 years) for annual white washing and indispensable repairs. The right of the tenant to deduct one month''s rent for annual repairs is founded on clause 5 of the agreement dated 1371956, Annexure 5 to the petition. This clause runs as follows :

�5. That the second party will not ask for alteration and repairs to the house in question for a year from the late of this agreement except for annual white washing and indispensable repairs, the cost of which shall in no circumstances exceeds one month''s rent (Rs. 30).�

A bare reading of this clause would indicate that the tenant was debarred from asking or making any alteration and repairs to the tenanted accommodation for a period of one year, i.e. upto 1271957. It was, however, provided that the expenses on annual white washing and indispensable repairs shall not exceeds more than Rs. 30 i.e. one month''s rent. This clause does not give a right to the tenant to deduct one month''s rent for annual repairs as a matter of course. He has to undergo certain formalities and has to establish that he did in fact effect the white washing and indispensable repairs after undergoing the procedure prescribed by law. The provisions of Section 28 of the Act could not be circumvented in the manner the tenantpetitioner attempted to do. Even in case of a deduction of one month''s rent for annual repairs, the tenant is required to serve the landlord with a notice to call upon him to carry out white washing and the necessary repairs and if after due notice, the landlord fails to do so within the time specified, the tenant would be entitled to effect white washing and repairs and to deduct the expenditure from the rent if it does not exceed the amount of two months'' rent. If the amount of repairs, white washing etc. is more than two months'' rent necessary deductions would be allowed only after an order is passed by the Prescribed Authority on the application of the tenant. In the instant case, admittedly no notice was ever served by the tenantpetitioner on the landlords to enable him to make deduction of rent for effecting white washing and necessary repairs. The tenantpetitioner, therefore, was not legally entitled to make automatic deductions in usual course to the extent of one month''s rent every year on the count of annual white washing and repairs.

Undoubtedly, if the tenant has paid the house and water taxes on behalf of the landlords to the Municipal authority, the amount so paid by him is deductible from rent. The revisional Court has recorded a finding that the amount which the petitioner has sought to deduct also includes water charges, which is separate from water tax. Water charges pertain to the cost of the actual consumption of water while water tax has no relation to its consumption. There is, therefore, a clear cut distinction between water tax and the water charges. Only the amount of water tax is deductible while the amount paid by the tenant as water charges has to be borne by him. The liability of the water charges cannot be foisted on the landlords.

In view of the above facts, the revisional Court has rightly come to the conclusion that the deductions on account of annual repairs and water charges etc. were not proper and legal. It has also taken correct view of the matter that the deposit made under Section 30 of the Act would not come to the rescue of the tenant petitioner. The fact, therefore, remains that within a period of one month of the notice of demand the tenant was in arrears of rent for more than four months and since he did not pay arrears of rent within the period prescribed after the service of notice of demand he has committed default in payment of arrears of rent rendering himself liable to ejectment.

Sri Yogesh Agarwal, learned Counsel for the petitioner pointed out that after institution of the suit, the petitioner has deposited considerable amount and therefore, he shall stand relieved of the liability from ejectment. The submission of Sri Agarwal is founded on the provision of Section 20(4) of the Act, which runs as follows : :

�20 (4) : In any suit for eviction on the ground mentioned in clause (a) of subsection (2), if at the first hearing of the suit the tenant unconditionally pays or 28 (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 nine per cent per annum and the landlord''s costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under subsection (1) of Section 30, the Court may, in lieu of passing of decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground :

Provided that nothing in this subsection, 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

Explanation For the purposes of this subsection :

(a) The expression �first hearing� means the first date for any step or proceedings mentioned in the summons served on the defendant;

(b) the expression �cost of the suit� includes onehalf of the amount of Counsel''s fee taxable for a contested suit.�

With a view to get the benefit of the provision of Section 20(4) of the Act, the tenant is required to deposit the amount as contemplated therein at the first date of hearing of the suit. In the instant case, the petitioner deposited on 1951997 a sum of Rs. 990 as rent for 33 months for the period 141993 to 31121995. This amount besides being insufficient was not deposited on the first date of hearing which was 831996 on which date the petitioner had filed the written statement and thereafter a number of dates for hearing of the case were fixed.

After the amendment in the form of incorporation of explanation added by Act No. 28 of 1976 to Section 20(4) it has been held in various decisions that for the purposes of Section 20(4), it is only the date mentioned in the summons and not any adjourned date that would be treated as the date of ''first hearing''. The decisions of this Court in Rafiq Ahmad v. III Additional District Judge, 1982 (1) ARC 381; Champa Ram v. Ist Additional District Judge, 1982 UPRCC 608 and Jagannath v. Ram Chandra Srivastava, (DB), 1982 (1) ARC 665, were affirmed by a Full Bench decision of Lucknow Bench of this Court in the case Sia Ram v. District Judge, Kheri and others, 1984 Lucknow Rent Journal 69 (FB) (Lucknow).

In the case of Sirja Ahmad Siddiqui v. Prem Nath Kapoor, SC and Full Bench Rent Cases 1993 Page 419 the expression first hearing occurring in the explanation to Section 20(4) came to be interrupted. The apex Court held as follows :

�The date of first hearing of a suit under the Code is ordinarily understood to be the date on which the Court proposes to apply its mind to the contentions in the pleadings of the parties to the suit and in the documents filed by them for the purpose of framing the issues to be decided in the suit. Does the definition of the expression first hearing for the purposes of Section 20(4) mean something different? The step or proceedings mentioned in the summons referred to in the definition should we think be construed to be a step or proceedings to be taken by the Court for it is after all a hearing that is the subject matter of the definition, unless there be something compelling in the said Act to indicate otherwise, and we do not finds in the said Act any such compelling provision. Further, it is not possible to construe the expression first date for any step or proceeding to mean the step of filing the written statement, though the date for that purpose may be mentioned in the summons for the reasons that as set out earlier, it is permissible under the Code for the defendant to file a written statement even thereafter but prior to the first hearing when the Court takes up the case, since there is nothing in the said Act which conflicts with the provisions of the Code in this behalf. We are of the view therefore, that the date of first hearing as defined in the said Act is the date on which the Court proposes to apply its mind the determine the points in controversy between the parties to the suit and to frame issues, if necessary.�

Relying upon the aforesaid observation in the case of Sirja Ahmad Siddiqui (supra), the apex Court in the case of Advaitanand v. Judge Small Causes Court, Meerut and others, 1995(2) JCLR 634 (SC): 1995 ARC 563, has taken the view that the date of ''first hearing'' as defined in the said Act is the date on which the Court proposed to apply its mind to determine the points in controversy between the parties to the suit and to frame issues, if necessary. The petitioner is not entitled to the benefit of Section 20(4) of the Act for two reasonsfirstly, that the amount of Rs. 990 was not deposited on the date of the first hearing of the suit and secondly the entire amount as contemplated under the aforesaid provision has not been deposited.

Sri Yogesh Agarwal, learned Counsel for the petitioner criticized the decision of the revisional Court on the ground that it could not have reappraised the evidence on record to sift the finding of fact recorded by the Court below and in any case, if the revisional Court found that the trial Court has fallen in error in coming to the conclusion with regard to the question of default on the part of the petitioner the proper course available to it was to have remanded the suit for decision afresh by the trials Court instead of undertaking the exercise to decide the case itself. A reference was made to the decision of this Court in Satya Prakash v. Special Judge (EC Act) Agra and others, 1998(2) JCLR 1078 (All) : 1998 UP RCC 695, in which the scope of the jurisdiction of the revisional Court came to be examined and it was laid down that it is not permissible to the revisional Court to reappraise the evidence. The observations made in Satya Prakash''s case (supra), are not of universal application and the question as to whether revisional Court can itself decide the suit disagreeing with the conclusions arrived at the trial Court has to be determined with reference to the facts of a particular case. It is true that the Court deciding the revision application under Section 25 of the Provincial Small Causes Courts Act has a very limited scope of interference. It cannot disturbed the finding of fact recorded by the trial Court by reappraising and reassessing the evidence unless it is found that the conclusions are based on misreading of the evidence or misinterpreting the documents or the findings arrived at are perverse. In Kamla Prasad v. District Judge, Allahabad, 1985 (1) ARC 473, it was held that whether the revisional Court exercised the power validly or not will depend on the facts of each case and if it could be shown that the power was exercised in a case where the trial Court arrived at finding on the basis of inadmissible evidence or by misinterpreting the documents or is perverse or it took into consideration irrelevant material on record, then it would be valid exercise of power. In S.K. Banerjee v. Surendra Narian Misra, 1990 (1) ARC 114, also the view taken was that though the revisional Court cannot reassess the value of the evidence and substitute its own conclusion on fact in place of those reached by the Court below, if the Court has recorded a finding of fact by misreading the pleadings of the parties or misreading the evidence on record or without application of mind or misinterpretation of law then a finding would stand vitiated in the eye of law and would require an interference by the Court in the exercise of revisional jurisdiction under Section 25 of the Provincial Small Causes Court''s Act. In a recent decision the apex Court in C. Chandramohan v. Sengottaiyan (dead) by LRS and others, 2000 (1) SCC 451, has observed that the revisional Court will be well within its jurisdiction in reversing the findings impugned before it and recording its own findings.

In the backdrop of above law, the legal position is absolutely clear that if the trial Court has taken a wholly erroneous view of the matter misreading or misinterpreting the evidence and has not correctly applied the law, its decision cannot be said to be ''according to law''. The revisional Court would step into rectify the mistake committed by the trial Court. A reading of the judgment of the trial Court makes it clear that its finding that the defendant tenant was not in arrears of rent for a period of more than four months and therefore, no case of default is made out, is perverse and is based on misreading of evidence. The revisional Court has rightly gone to the extent of observing that the trial Court deliberately distorted the facts the revisional Court has given good and valid reasons to interfere with the findings recorded by the Court below. Since entire evidence was available on record on the legal questions were canvassed before the revisional Court, it was not necessary for it to have remanded the case for decision afresh. It has rightly decided the case itself on the basis of material available on record. In the light of the above discussion and the legal position, the decision of the revisional Court has to be approved and affirmed.

In the conspectus of the factual and legal matrix of the case, the present writ petition turns out to be devoid of any merits and substance. It is accordingly dismissed without any order as to costs.