The interpretation of the proviso to Sub Section (4) of Section 20 of the U.P. Act no.13 of 1972 and its application to the entitlement of benefit under Section 20(4) in the context of a residential accommodation and a Godown.

Mrs. Sunita Agarwal, J. –

Heard learned counsel for the parties and perused the record.

2. An eviction suit has been filed on the ground of default in payment of rent. The suit property as per own case of the landlord is a residential accommodation comprising of four rooms common Latrine/Bathroom, Balcony and a passage situated at the first floor of House no. 31/32, Beldari Mohalla, Kanpur Nagar. It is stated by the landlord in the notice dated 04.12.2010 that the defendant is tenant of the residential premises at the rent of Rs.200/- per month. There is one more accommodation which is in possession of the defendant namely one Godown at the ground floor of the above noted premises.

3. In paragraph no.2 of the notice dated 04.12.2010, it is categorically stated that the defendant is tenant of a Godown apart from the residential accommodation, the rent of which is Rs. 65/- per month besides water tax and sewer tax at the rate of Rs.11/- per month.

4. Thus the nature of tenancy and the extent of tenement has clearly been narrated by the landlord in the notice of determination of tenancy. After the notice was served, the eviction suit was filed which was registered as SCC suit no.11 of 2011. Five issues were framed, relevant issue no.2 and 3 are as under;-

       ^^2- D;k fdjk,nkj }kjk Hkou Loeh dks fdjk;k vnk djus esa O;fDrdze fd;k gSA
3- D;k izfroknh /kkjk 20(4) ;w0ih0 ,DV 13 lu~ 1972 ds izko/kku dk ykHk izkIr djus dk vf/kdkjh gSA**

5. Finding on issue no. 2 is that the notice demanding rent was served upon the petitioner. The defendant though contended that he had tendered rent through a money order within the period given in the notice which was refused but he could not prove this fact. The deposits made by him under section 30 of U.P. Act no.13 of 1972 after service of notice, therefore, were not found valid. This finding of fact recorded by the Trial Court has been affirmed by the Revisional Court and cannot be interfered by this Court for the reason that the refusal by the landlord could not be proved by the tenant.

6. On issue no.3, on the question of grant of benefit under Section 20(4) of the Act, it was held that though the tenant has deposited arrears of rent in the present suit, but he was not found entitled to the benefit of Section 20(4) of the Act in view of proviso to Sub Section (4) of Section 20 of the Act.

7. The said Proviso categorically provides that in case, the tenant or any member of whose family has built or acquire in a vacant state any "residential building" in the same city, municipality, notified area or town area the Sub Section (4) of Section 20 of the Act would not apply.

8. To challenge this finding, categorical submission of learned counsel for the petitioner is that the Proviso to Sub Section (4) of Section 20 of the Act has no application in so far as the Godown is concerned. The tenancy of residential accommodation and Godown are separate as rent has been assigned separately for both the tenements. This fact is admitted to the landlord in the notice dated 04.12.2010. The Godown cannot be included in the "residential accommodation" as contemplated under the Proviso to Sub section (4) of Section 20 of the Act.

9. Reliance has been placed upon the judgment of this Court in Har Swarup Nigam Versus District Judge, Allahabad and others and the judgment of Apex Court in Goa Urban Co-op. Bank Ltd. v. Noor Mohd. Sheikh Mussa to submit that the Godown cannot be included in the "residential accommodation" rather it is a non residential or commercial accommodation.

10. Learned counsel for the respondent on the other hand submits that in any case, the benefit of Section 20(4) of the Act cannot be extended to the residential accommodation which compromises of four rooms and amenities situated at the first floor of the House in question.

11. The submission of learned counsel for petitioner to challenge the findings on issue no.3 recorded by the Trial Court and affirmed by the Revisional Court finds force. The wo