IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 72 of 2010 Shailendra Kumar Jain S/o Late Prakash Chandra Jain R/o 103 Haridwar Road, Rishikesh Dehradun ………..…Petitioner Versus Manvendra Kumar Chatterjee S/o Manek Lal Chatterjee R/o Shop No. 12, Veer Market 103 Haridwar Road, Rishikesh, Dehradun ....……Respondent Shri B.P. Nautiyal, Advocate, present for the petitioner. Shri V.K. Kaparwan , Advocate, present for the respondent . Hon’ble Prafulla C. Pant, J. Heard. 2. By means of this writ petition moved under section 226 read with section 227 of Constitution of India, the petitioner has sought writ in the nature of certiorari quashing the order dated 08.01.2010 (copy Annex. 13 to the writ petition) passed by Additional District Judge, Rishikesh, in SCC revision no. 23 of 2008, whereby said court allowed the applications 2 20C, and 22C filed by the respondent (Tenant) and remanded the case to the trial court. 3. Brief facts of the case are that the petitioner Shailendra Kumar is landlord, and respondent Manvendra Kumar Chatterjee is his tenant in shop no. 12 Veer Market, 103 Haridwar Road,Rishikesh, on rent @ ` 622/- ( Rupees six hundred and twenty two only) per month. It appears that the petitioner (landlord) instituted Small Cause suit no. 42 of 2003, against the respondent for his eviction after terminating his tenancy by serving a notice under section 106 of Transfer of Property Act, 1882. The respondent contested the suit and filed his written statement. He did not deny that the provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, (for short U.P. Act, 1972) were not applicable to the case. The respondent did not claim benefit of sub-section (4) of section 20 of said Act. The trial court (JSCC/ Civil Judge (Sr. Div.) Dehradun), after recording evidence and hearing the parties, decreed the suit for eviction of the respondent vide judgment and decree dated 11.07.2008. Aggrieved by said judgment and decree respondent Manvendra Kumar Chatterjee (tenant) filed SCC revision no. 23 of 2008 under section 25 of 3 Provincial of Small Cause Court Act, 1887. During the pendency of said revision, it appears that the respondent (revisionist before the lower court) moved applications 20C and 22C. In application 20C he sought amendment under Order VI Rule 17 of CPC, in the written statement to take plea of protection under sub-section (4) of section 20 of U.P. Act,13 of 1972. In application 22C respondent (revisionist in lower court) sought permission to file additional evidence by the impugned order. The trial court allowed the said applications. Hence this petition. 4. Admittedly, the petitioner is landlord, and the respondent was his tenant. It is also clear that petitioner filed suit for eviction against the respondent alleging that the tenancy of the respondent stands terminated after serving a notice under section 106 of Transfer of Property Act, 1882. From the copy of the plaint (Annex.1 to the writ petition) it is clear that it is pleaded by the petitioner (landlord) that provisions of U.P. Act, 13 of 1972, are not applicable to the case. From the copy of written statement (Annex. 2 to the petition) filed by the defendant before the trial court, it is evident that the respondent contested the suit mainly on the ground that after receiving the notice, an amount of ` 3,930/- 4 ( Rupees three thousand and nine hundred thirty only) was sent by money order but the plaintiff refused to accept the same. It is also pleaded by the respondent in the written statement that he is entitled to benefit of provisions of Transfer of Property Act, 1882, regarding which it was argued before the court below that the respondent intended to refer protection under section 114 of Transfer of Property Act, 1882. 5. Section 114 of Transfer of Property Act, 1882, is applicable to the cases where the tenancy is terminated on the ground of non-payment of rent. In the present case from the plaint, it appears that tenancy was terminated simplicitor by invoking provision under section 106 of Transfer of Property Act, 1882. 6. It is argued on behalf of the petitioner that the amendment application 20C moved before the revisional court, and application 22C were erroneously allowed by said court. In this connection it is argued that if the amendment is allowed at revisional stage to take plea of section 20 (4) of U.P. Act, 13 of 1972, the purpose of the provision itself gets defeated. Also it is contended 5 that order 41 Rule 27 to file the additional evidence is applicable to the appeals not to the revision, particularly when the evidence sought to be adduced is contrary to the stand taken before the trial court. 7. Sub-section (4) of section 20 of U.P. Act, 13 of 1972 reads as under:- “(4) In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in Court the entire amount of rent and damages for use and occupation of the building due form him (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine percent per annum and the landlord's costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) of Section 30, the Court may, in lieu of passing a 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 sub-section 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 6 in the same city, municipality, notified area or town area. Explanation- For the purposes of this sub-section- (a) the expression 'first hearing' means the first date for any step or proceeding mentioned in the summons served on the defendant; (b) the expression 'cost of the suit' includes one-half of the amount of counsel's fee taxable for a contested suit'.” 8. From the above quoted provision, it is clear that the protection under sub-section (4) applicable only to the suits which are filed on the ground on default in payment of rent as provided in clause (a) of sub-section (2) of section 20 of the Act. Since, the present suit was not filed under clause (a) of sub- section (2) of section 20, there is no application of sub-section (4) of this section. Apart from this, it is evident from the language of sub-section (4) of section 20 quoted above, that the tenant is required to deposit unconditionally entire amount of rent, and damages with interest , and costs of the suit before or at the first date of hearing of the suit. In the present matter suit has also proceeded further, and reached to the stage of revision. If the 7 defendant (tenant) is allowed to take plea of sub- section (4) at revisional stage, it would frustrate the mandatory condition (requiring deposit of rent with interest by first date of hearing in suit)mentioned in sub-section (4) of section (20) of U.P. Act, 13 of 1972. Therefore, this Court is of the view that the revisional court committed grave error of law in allowing application 20C to allow amend the written statement to take the plea of protection of sub-section (4) of section (20) of U.P. Act, 13 of 1972, at the revisional stage. 9. Similarly, the revisional court further committed error of jurisdiction by allowing application under order 41 Rule 27 CPC, at the revisional stage to file the additional evidence particularly when the conditions mentioned in Rule 27 were not fulfilled. There are only three conditions mentioned in the Rule 27 under which the appellate court has jurisdiction to allow the additional evidence. In the present case none of the three conditions are fulfilled. 10. For the reasons, as discussed above, this writ petition is allowed. Impugned judgment and order dated 08.01.2010, passed by the Additional 8 District Judge, Rishikesh, in SCC revision no. 23 of 2008, is set aside. Applications 20C and 22C shall stand rejected. Revisional court is directed to decide the revision on merits without unreasonable delay. (All pending applications including clarification application no. 10171 of 2010 stand disposed of). (Prafulla C. Pant,J) Parul 07.12.2010