Sibghat Ullah Khan, J.
1. Heard learned Counsel for the parties.
2. This is tenant petitioner's review application. Suit for eviction filed by respondents Nos. 1 and 2 landlords against tenant-petitioner for eviction and recovery of arrears of rent had been decreed by both the courts below (Judge Small Causes Court, Jhansi and Additional District Judge Court No. 4, Jhansi) on the ground of default (even though landlords had pleaded that the U.P. Urban Building Regulation of Letting Rent & Eviction Act 1972 was not applicable to the building in dispute however, this point was decided in favour of the tenant by the courts below and it was held that the Act was applicable). Number of the suit was SCC suit No. 69 of 1995 and it was decreed on 12.10.2000. Number of the revision was SCC revision No. 110/2000 and it was dismissed on 2.8.2007. Writ petition was dismissed by me on 31.8.2007. Regarding benefit of Section 20(4) of the Act which provides that if on the first date of hearing entire rent due till then alongwith interest and cost of the suit is deposited by the tenant then decree for eviction may not be passed I held in my judgment under review that deposit made by the tenant was short 3rd paragraph of the judgment is quoted below:
The first argument of the learned Counsel for the tenant petitioner is that he had deposited the entire rent, cost and interest etc. on the first date of hearing @ Rs. 300/- per month, hence he was not liable to eviction. Landlord had claimed rent @ Rs. 300/- per month, however, the tenant asserted that the rent was @ Rs. 17.50/- per month. Courts below in this regard found the version of the landlord to be correct. As far as benefit of Section 20(4) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is concerned, the tenant had deposited rent for certain period amounting to Rs. 630/- under Section 30 of the Act. The said rent was deposited @ Rs. 17.50 and was for a period of about two years. After deducting the said amount, rent for the subsequent period was deposited in the suit @ Rs. 300/- per month. Both the courts below held that for the period for which rent was deposited under Section 30 of the Act (@ Rs. 17.50 per month) tenant was defaulter to the tune of Rs. 282.50/- per month for the said period.
3. After hearing learned Counsel for both the parties I am satisfied that the above factual finding is not correct and is not in accordance with the material on record. Learned Counsel for the landlords has also admitted this position. True copy of the plaint is Annexure-2 to the writ petition. It is alleged in the plaint that rent at the agreed rate of Rs. 300/- per month had not been paid since 24.7.1993 till 15.3.1995 (plaint was filed in March 1995). For the period after the notice dated 21.4.1994 till the filing of the suit damages were claimed at the rate of Rs. 450/- per month. During argument on the review petition, learned Counsel for the landlords admitted that the amount which was deposited on 18.10.1995 by the tenant was complete under Section 20(4) of the Act. From the details of the deposit given in the review application which are not denied it is clear that 21.10.1995 was the date of first hearing and one day prior to that i.e. on 20.10.1995 tenant-petitioner had deposited Rs. 13,095/-. Apart from it an amount of Rs. 630/- had already been deposited under Section 30 of the Act. In this manner total deposited amount was Rs. 13,725/-. However, the requirement to deposit was only of Rs. 11,314.50, (it includes Rs. 8,100/- as rent for 27 months (24.7.93 to 21.10.1995) at the rate of Rs. 300/- per month and Rs. 850/- as interest and Rs. 2364.50 as cost). As Annexure-1 to the review petition, copy of an application filed by the petitioner before the trial court on 18.10.1995 has been annexed seeking permission to deposit the amount.
4. The main argument of learned Counsel for the landlords-respondents is that on 18.11.1998 landlords filed application for withdrawal of the amount. On the margin of the said application the following endorsement was made by the tenant (or his counsel).
Opposed. Till the case is not decided this money was deposited under protest.
5. Copy of the application containing the endorsement is Annexure-2 to the review application. Learned Counsel for the landlords has argued that in view of the said endorsement deposit became conditional while requirement under Section 20(4) of the Act is that the amount shall be deposited unconditionally.
6. On 29.1.2010 when review petition was finally heard, the court specifically enquired as to whether any specific order was passed on the said application or not, no reply could be given. Similarly, learned Counsel for the landlords was not sure whether landlords had actually withdrawn the amount deposited by the tenant during the pendency of the suit or not.
7. This aspect has thoroughly been considered in Division Bench authority of this Court reported in Mahendra Pratap Garg v. Smt. Vijai Laxmi 1983 A.R.C. 74. The said judgment has been approved by the Supreme Court in Smt. Vaijai Laxmi v. M.P. Garg : A.I.R. 1986 S.C. 753. It has been held in the said Supreme Court authority that depositing an amount under protest does not mean that the deposit is conditional or landlord cannot withdraw it. However, if the amount is deposited or paid with the condition that it must be accepted in full and final satisfaction otherwise not then it becomes conditional.
8. In another authority reported in Devi Prasad v. Ram Kumar Maheshwari 1983 A.R.C. 253 following the aforesaid Division Bench authority it was specifically held that if on the withdrawal application filed after deposit by the tenant, the endorsement made is to the effect that;
9. 'Received copy, strongly opposed, shall file objection' still the deposited amount does not become conditional. In the aforesaid case no actual objections were subsequently filed by the tenant after making aforesaid endorsement.
10. In my opinion the above authorities fully cover and support the point raised by learned Counsel for the tenant.
11. Accordingly, it is held that the endorsement of 'opposed' did not render the amount already deposited conditional.
12. Review application is therefore allowed. Judgment and order dated 31.8.2007 dismissing the writ petition is set aside. Writ petition is allowed. Judgments of the courts below, decree passed by the trial court and order passed by the revisional court are set aside. Suit of the landlords-respondents is dismissed. I have held in Khursheeda v. A.D.J 2004(2) ARC 64 and H.M. Kichlu v. A.D.J 2004(2) ARC 652 that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act or while maintaining the said relief already granted by the courts below, writ court is empowered to enhance the rent to a reasonable extent.
13. In the aforesaid authority of Khursheeda (supra), I placed reliance upon the Supreme Court authority of M.V. Acharya v. State of Maharashtra AIR 1998 SC 602, where it was held that it was essential to provide for periodical enhancement of rent under the Rent Control Acts. The Supreme Court has further held that frozen rents are giving rise to lawlessness and landlords out of frustration are approaching muscle man to get the premises vacated and courts of law are becoming redundant in this sphere. This authority has recently been followed by the Supreme Court in Satyawati Sharma (dead) by L.Rs. v. Union of India and Anr. : (2008) 5 SCC 287 : 2008 (71) ALR 499, part of Para-29 & Para-34 of which are quoted below:
29. It is trite to say that legislation which may be quite reasonable and rationale at the time of its enactment may with the lapse of time and/ or due to change of circumstances become arbitrary, unreasonable and violative of the doctrine of equity and even if the validity of such legislation may have been upheld at a given point of time, the Court may, in subsequent litigation, strike down the same if it is found that the rationale of classification has become nonexistent.
34. In Malpe Vishwanath Acharya and Ors. v. State of Maharashtra and Anr. (supra), the Court found that the criteria for determination and fixation of rent by freezing or by pegging down of rent as on 01.09.1940 or as on first date of letting, had, with the passage of time become irrational and arbitrary but did not strike down the same on the ground that extended period of Bombay Rent Act was coming to an end on 31.03.1998.
14. Under U.P. Rent Control Act, there is no provision of enhancement of rent after October, 1972 [Except where landlord is public charitable or public religious institution (Section 9-A) or government is tenant (section 21(8)]. In the aforesaid authority of Khursheeda, I have also placed reliance upon the authority of Supreme Court reported in : AIR 1996 SC 2410 'Shangrila Food Products Ltd. v. Life Insurance Corporation of India', paragraph-11 of which is quoted below:
It is well-settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court, being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.
15. Thereafter in Para-8 of the aforesaid authority of Khursheeda, I held as under:
Rent Control Act confers a reasonable advantage upon the tenant of protection against arbitrary eviction. Tenant under the Rent Control Act cannot be evicted except on specific grounds like bonafide need of the landlord, arrears of rent, subletting and material alteration etc. This advantage is also coupled with the advantage of immunity from enhancement of rent. The latter advantage cannot be said to be either reasonable or equitable. The Supreme Court in the aforesaid authority of S.F.P. v. L.I.C : A.I.R 1996 S.C 2410. has laid down that while granting relief to a party the writ court can very well ask the said party to shed the unfair advantage which it gained under the impugned order. By slightly extending the said doctrine it may safely be held that while granting the reasonable advantage to the tenant conferred upon him by the Rent Control Act the tenant may be asked to shed the un-reasonable arbitrary advantage conferred upon him by the said Rent Control Act. The writ court therefore while granting or maintaining the relief against arbitrary ejectment to the tenant can very well ask the tenant to shed the un-reasonable benefit of the Rent Control Act granted to him in the form of immunity against enhancement of rent, however inadequate the rent might be. Tenant will have to shed the undue advantage of immunity from enhancement of rent under the Rent Control Act to barter his protection from arbitrary eviction provided for by the said Act.
16. While dismissing the writ petition I had granted six months time to vacate on the condition that since the date of decision of the writ petition rent was paid at the rate of Rs. 500/- per month. The said rent is being paid till date.
17. Property in dispute is a shop situate in Jhansi. Accordingly, it is directed that with effect from April, 2010 onward rent shall be paid at the rate of Rs. 1,000/-per month which shall include the water tax etc. No further amount over and above Rs. 1,000/- per month shall be payable.