Sudhir Agarwal, J.:—

1. Heard Smt. Abha Gupta, learned counsel for the petitioner and Sri Shesh Kumar, learned counsel appearing for respondent No.2.

2. This writ petition though by referring to Article 226 of Constitution has been filed but in substance it has invoked supervisory jurisdiction of this Court under Article 227 of Constitution assailing judgment dated 25th February, 1999 (Annexure 4 to the writ petition) passed by District Judge, Mahoba in S.C.C. Revision No.01 of 1998 (Laxman Prasad Tamakar Vs. Subhash Chandra Purwar) whereby Revisional Court while allowing revision has set aside the judgment and decree dated 23rd December, 1997 passed by Small Cause Court/Civil Judge (Junior Division) Mahoba in S.C.C. Suit No.01/1995.

3. The facts in brief are as under:

4. The petitioner Subhash Chandra Purwar, S/o Badri Prasad Purwar filed suit No.1/95 under Section 20(2) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No.13 of 1972) (hereinafter referred to as "Act, 1972") impleading Sri Laxman Prasad Tamakar as sole defendant, who has now been substituted by his legal heirs in this writ petition. The aforesaid suit was filed with a prayer for recovery of arrears of rent and ejectment from the shop in question situated at Tamarayee Bazar, Mahoba. It is alleged that defendant-tenant committed default in payment of rent since January, 1995 and his tenancy was terminated by notice dated 4th May, 1995. Despite demand, rent was not paid and therefore he is liable for eviction and payment of arrears of rent. The tenant has a residential accommodation at Subhash Chowk. The petitioner landlord claimed Rs.621.86 towards rent besides damages, water tax, house tax and expenses for filing suit and also mesne profits.

5. The suit was contested by defendant-tenant denying any default in payment of rent. It is said that rent was paid upto May, 1995 though landlord did not furnish any receipt despite repeated demand. It is also stated that house tax and water tax not payable separately but were included in the rent itself. Though it was not disputed that tenant had a residential building (house) at Subhash Chowk, Mahoba but there is no shop therein. The place where the house is situated is not suitable for market. The other grounds regarding goodwill, long continuance of tenancy were also taken.

6. The Trial Court decreed the suit vide judgment dated 23.12.1997 holding tenant defaulter in payment of rent. The Court also observed that entire rent claimed by landlord alongwith expenses, interest etc. was deposited by tenant through Tender submitted before Trial Court on 22.8.1995 and passed on 23.8.1995. The amount was actually deposited on 24th August, 1995. However benefit cannot be extended under Section 20(4) in view of the proviso which denies such benefit to a tenant who has a residential accommodation in the same locality, city etc..

7. The tenant's revision has been allowed by Revisional Court holding that proviso is applicable in respect to a "residential building" though property in question was a shop. The Revisional Court has said that taking recourse to proviso, benefit under sub-section (4) of Section 20 could not have been denied to the tenant when ejectment proceedings are related to a non residential building. Since the tenant had deposited entire dues as contemplated under sub section (4) of Section 20, the Revisional Court held that decree of eviction ought not have been passed. Accordingly it reversed Trial Court's decree and allowed the revision. Hence this writ petition.

8. The question, which has been seriously argued before this Court is that "Revisional Court could not have altered a finding of fact recorded by the Trial Court; the scope of proviso to Section 20(4) could not have been restricted; and, that even otherwise the deposit having not made on first date of hearing namely 22.8.1995, Section 20(4) was inapplicable".

9. Coming to the first issue, however, I do not find any s

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