Non-compliance with Section 20(4) of the Act and non-deposit of cost under Section 35-B C.P.C. disentitles the tenant from claiming the benefit of Section 20(4) of the Act.

1. Heard learned counsel for the parties.

2. This petition by the landlord is directed against a revisional order dated 11.11.1999 allowing the revision of the respondent tenant against a decree of eviction and arrears of rent dated 6.1.1999 and dismissing the suit.

3. The petitioner landlord had earlier filed a Suit No. 7 of 1994 for arrears of rent and eviction claiming default from 1.9.1989 against the respondent tenant from the disputed shop where he was a sitting tenant. However, the suit was decided in terms of a compromise dated 25.1.1995 where the respondent tenant undertook to deposit the entire remaining amount of rent of Rs. 3700/- by 30.6.1995 and the rent was also enhanced to Rs. 200/- per month w.e.f. 1.4.1995. However, neither the rent in accordance to the compromise was paid nor the respondent tenant deposited the entire amount forcing the petitioner to file an execution case. Since rent was not being paid w.e.f. 1.4.1995 at the rate of Rs. 200/- per month, the petitioner determined the tenancy vide notice dated 20.8.1996 and demanded rent from 1.4.1995 together with water tax. The respondent tenant neither tendered the rent nor vacated the premises forcing the petitioner to file a fresh Suit No. 16 of 1996 before the Judge Small Cause demanding rent w.e.f. 1.4.1995 apart from water tax and cost etc. After contest, the suit was decreed vide judgment dated 6.1.1999 on the ground of default and benefit of section 20(4) of U.P. Act No. 13 of 1972 (hereinafter referred to as the Act) was also denied. Aggrieved, the respondent tenant preferred a revision which has been allowed by the impugned order holding that there was substantial compliance of section 20(4) of the Act and relieved the tenant from eviction.

It is urged on behalf of the petitioner that the court below had erred in extending the benefit of Section 20(4) of the Act even though the entire amount as required was not deposited. It is also urged that even non deposit of cost under Section 35-B would dis-entitle the tenant from protection of Section 20(4) of the Act.

4. The court below, without there being any pleading to that effect, has allowed adjustment of the alleged excess payment and has also held that, assuming it could not do so, default of Rs. 80/- was condonable and would amount to substantial compliance of Section 20(4) of the Act. It further went on to hold that non deposit of cost was a question of fact and the same, if due, could be recovered under Section 35-B C.P.C.

5. The Apex Court in the case of Nand Lal Agarwal vs. Ganesh Prasad Sah & others, was confronted with a situation as to whether a landlord was entitled to adjust the excess payment towards arrears of rent. It held that without the tenant calling upon the landlord to adjust the excess payment, he cannot seek such a right or defence in a suit for eviction. However, learned counsel for the respondent has urged that the Apex Court in the case of Mam Chand Pal vs. Shanti Agarwal, has held that excess payment could be adjusted. In Mam Chand Pal's case the specific question whether adjustment could be made without the tenant calling upon the landlord to do so, was not an issue. In fact in the alternative, while considering the argument of the tenant, the Court found that the electricity charges were not to be deposited under Section 20 (4) of the Act and which could have been adjusted and since there was a minor deficiency of Rs.17/- in a payment of about Rs.6000/-, it found it be hyper technical. Thus, the ratio laid down in Mam Chand's case would not apply in the present proceedings. Apart from that, a learned Single Judge of this Court in the case of Kaushalya Devi & others vs. Special Judge, Gorakhpur & others, after approving the ratio laid down in Nand Lal Agarwal's case, has gone on to hold that the tenant had no right to raise a plea of adjustment of excess payment at the stage of revision. There is nothing on record to show that any plea or argument for adjustment wa