# University Book Depot Revisionist v. Amit Mishra

- **Citation:** (2020) 6 ILRA 1285
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-29
- **Case number:** Civil Revision No. 10 of 2009
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/university-book-depot-revisionist-v-amit-mishra-45770
- **Pages:** 15

## Headnote

Law
-
U.P.
Urban
Buildings
(Regulation
of
Letting,
Rent
and
Eviction) Act, 1972 - Section 20(4) -
Provincial Small Causes Courts Act, 1887
- Section 17 - amount deposited by the
tenant u/s 17 of the Act, 1887 for
setting aside ex-parte decree - could be
taken into account - for relieving the
tenant from liability of eviction under
Sub-section 4 of Section 20 of the Act,
1972 - but even after treating such
amount as one under Section 20 (4), in a
1286 INDIAN LAW REPORTS ALLAHABAD SERIES
given case, if the amount falls short of
the amount referred in Section 20 (4) or
it is found that it was not deposited on
or before the first date of hearing then
the benefit of the said provision may not
be available to the tenant (Para 19, 22)

Allowed. (E-5)

List of case cited :.

## Text

_Characters 0–39,984 of 52,329. This is a partial read: ask again with offset=39984 for what follows._

6 All. University Book Depot Vs. Amit Mishra 1285
not hypothetical. Merely making vague
allegation that there is an apprehension in
the mind of applicant that justice will not
be done in a given case alone does not
suffice.

9. Considering the facts and
circumstances
of
the
case
and
submissions of learned counsel for the
parties in the light of guidelines laid down
by the Apex court, I find that allegations
leveled by the applicant as mentioned
above are wholly vague and general in
nature, which are not supported by any
material on record. Now a days such kind
of frivolous allegations and triviality are
being used unflinchingly by one party of
a case as a tool to pressurize the presiding
officer to settle its personal score.
Entertaining such kind of frivolous
allegations without any strong material on
record will indirectly cast stigma upon the
concerned Presiding Officer for no fault
of his. Any such attempt made by any
person must be discarded in order to
maintain judicial discipline, otherwise on
each and every step of proceeding either
party will try to hamper the judicial
proceeding adopting different modus
operandi in justice delivery system and it
will very difficult for them to discharge
their judicial function with free mind. In
the opinion of this court apprehension
expressed by the applicant is not
reasonable. There is no basis for the
apprehension of the applicant that he will
not get proper justice. There is nothing on
record to indicate that the presiding
officer has done any act calculated to
create such an apprehension in the mind
of the applicant. Illegitimate apprehension
without any basis/material on record
cannot constitute a legitimate ground to
transfer a case from one court to another
court. The grounds set out by the
applicant do not justify the transfer of
case as prayed by the applicant. I do not
find any good ground to interfere in the
matter. There is no error or illegality in
the order dated 20.02.2020 passed by
District Judge, Bareilly.

10.

Consequently
transfer
application being sans merit stands
dismissed.

11.

Office
is
directed
to
communicate this order to the concerned
court below within two weeks.
----------
(2020)06ILR A1285
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.05.2020

BEFORE

THE HON'BLE RAJAN ROY, J.

Civil Revision No. 10 of 2009

University Book Depot ...Revisionist
Versus
Amit Mishra ...Opposite Party

Counsel for the Revisionist:
P.V. Chaudhary, A.S. Chaudhary, Brijesh
Kr. Saxena, Sudhakar Audichya

Counsel for the Opposite Party:
Mohd. Saeed - Ii

Civil
Law
-
U.P.
Urban
Buildings
(Regulation
of
Letting,
Rent
and
Eviction) Act, 1972 - Section 20(4) -
Provincial Small Causes Courts Act, 1887
- Section 17 - amount deposited by the
tenant u/s 17 of the Act, 1887 for
setting aside ex-parte decree - could be
taken into account - for relieving the
tenant from liability of eviction under
Sub-section 4 of Section 20 of the Act,
1972 - but even after treating such
amount as one under Section 20 (4), in a
1286 INDIAN LAW REPORTS ALLAHABAD SERIES
given case, if the amount falls short of
the amount referred in Section 20 (4) or
it is found that it was not deposited on
or before the first date of hearing then
the benefit of the said provision may not
be available to the tenant (Para 19, 22)

Allowed. (E-5)

List of case cited :.
1. Bhragu Dutt Singh Vs Shyam Kishore 1980
LLJ 62

2. Sunt Ram Gupta Vs Ratan Prakash (1982) 1
ARC Page 16

3. Lacchi Ram Vs Ist ADJ (1984) 1 ARC Page
4

4. Badi Uzzaman Vs DJ, Kanpur (1987) (1)
AWC 354

5. Mahadeo Singh Vs Sheshnarayan Pathak
(1990) 1 ARC 293,

6. Satish Kumar Dutta Vs A.D.J., Kanpur
(2006) 63 ALR 269 (All.)

7. Ravi Shankar Kansal Vs D.J., Aligarh, Writ A
no. 53074/1999 14.08.2012

8. E. Palanisamy Vs Palanisamy 2003 (1) SCC,

9. Balwant Singh & ors. Vs Anand Kumar
Sharma & ors. 2003 SCC 433,

10. Moinuddin @Mamo & 2 ors Vs St. of U.P.
& ors. 2016 (3) ARC 459,

11. Krishna Kumar Gupta Vs. A.D.J. 14th,
Allahabad & ors. 2004 (57) ALR 776

(Delivered by Hon'ble Rajan Roy, J.)

1. This is a revision under Section
25 of the Provincial Small Causes Courts
Act, 1887 (herein after referred as Act,
1887) by the tenant challenging the
judgment and decree dated 16.12.2008
passed by the SCC Court in SCC Suit no.
2 of 2006.

2. The facts of the case in brief are
that a suit was filed by the respondent
landlord before the SCC Court bearing
no. 2 of 2006 for arrears of rent, damages
and
eviction
after
determining
the
tenancy. The suit in question was decreed
ex-parte on 18.08.2006. The revisionist
herein who was the defendant in the suit
filed an application under Order IX Rule
13 CPC for setting aside the ex-parte
decree
on
04.09.2006
which
was
registered as Miscellaneous Case no. 12
of 2006. On 30.11.2006 an application
bearing no. 16(g) was filed for passing the
tender for deposit of Rs. 15,775/- which
was the decretal amount as per ex-parte
decree dated 18.08.2006, under Section
17 of the Act, 1887 which requires the
deposit of such amount. The said
application was allowed on 08.12.2006 by
the Court with the observation that
deposit may be made by the applicant
tenant at his own risk. Accordingly, on
the said date itself the aforesaid deposit
was made. Subsequently on 06.10.2007
another application bearing no. 29(g) was
filed and was allowed for depositing
additional amount of Rs. 3570/- under
Section 17 of the Act, 1887. The
application under Order IX Rule 13 was
allowed by the SCC Court on 13.11.2007
and the ex-parte decree dated 18.08.2006
was set aside. After the decree being set
aside, the amount deposited under Section
17 of the Act, 1887 was available to the
revisionist tenant for being withdrawn but
he did not do so and this fact is not in
dispute.

3. It is not out of place to mention
that the aforesaid amount under Section
17 of the Act, 1887 is in the nature of
security for the decreetal amount as per
the ex-parte decree, meaning thereby, in
the event the application under Order IX
6 All. University Book Depot Vs. Amit Mishra 1287
Rule 13 is rejected then the said deposit
can be utilised for satisfying the ex-parte
decree. However, if the decree is set aside
then there is no question of its satisfaction
and the tenant can withdraw the same
unless he has filed an application or
otherwise requested that that the said
amount be treated as a deposit under
Section 20(4) of the U.P. Urban Buildings
(Regulation
of
Letting,
Rent
and
Eviction) Act, 1972, (herein after referred
as Act, 1972) if the said provision applies,
in a given case.

4. After the setting aside of the
decree, 20.12.2007 was fixed as the date
for filing of written statement which was
further
extended
to
09.01.2008,
16.01.2008 and then to 23.01.2008 when
the written statement was filed by the
revisionist.

5. It is not out of place to mention
that in an SCC Suit issues are not required
to be framed and every date is a date of
hearing as the procedure to be followed is
summary in nature.

6. Thereafter, the matter was proceeded
by the SCC Court and the suit was again
decreed
after
hearing
the
parties
on
16.12.2008. The SCC Court found the
landlord tenant relationship to be established
and it also found that tenancy had been
determined by a valid notice. On the question
of rate of rent as there was a dispute, the Court
recorded a finding that the rent was Rs. 100/-
per month and not Rs. 375/- per month as was
being claimed by the landlord. It needs to be
mentioned that the landlord has not
challenged this finding. The SCC Court also
recorded a finding about the tenant being in
arrears of rent. However, on the question of
application of Section 20(4) of the Act, 1972,
as the said Act was applicable to the facts of
the case a plea was raised on behalf of the
tenant that the deposit already made under
Section 17 of the Act, 1887 should be treated
as a deposit under Section 20(4) along with
the deposits made under Section 30 of the said
Act and the rent paid during pendency of the
suit, which, according to him satisfied the
requirements of Sub-Section 4 of Section 20.
The SCC Court did not accept this plea on the
ground that in view of the decision of a Single
Judge Bench of this Court in the case of
Bhragu Dutt Singh Vs. Shyam Kishore, 1980
LLJ Page 62 it was impermissible to treat or
adjust the deposit made under Section 17 of
the Act, 1887 as a deposit under Section 20(4)
of the Act, 1972. It needs to be mentioned that
the Court below did not reject the plea on the
ground that no such application for treating
the deposit under Section 17 of the Act, 1887
as a deposit under Section 20(4) of the Act,
1972 was made by the tenant on the first date
of hearing or thereafter but it was rejected on
merits as being impermissible.

7. Accordingly, the suit was decreed in
favour of the plaintiff and it was ordered that
the defendant would pay to the plaintiff rent
of 3 years @ Rs. 100/- per month i.e. Rs.
3600/-, arrears of water tax of 3 years i.e. Rs.
1350/- and damages for illegal use and
occupation of the premises for 3 years @ Rs.
100/- i.e. Rs. 3600/- and Rs. 550/- as cost of
the notice along with 6% simple interest
thereon and shall hand over vacant possession
of the tenanted premises to the plaintiff decree
holder. If the aforesaid order was not
complied by 12.02.2009 then the plaintiff
would have a right to get the judgment and
decree executed through the Court.

8. Shri B.K. Saxena, learned counsel
for the petitioner confined his argument
only on the question of permissibility of
the deposit made under the proviso to
Section 17 of the Act, 1887 being
1288 INDIAN LAW REPORTS ALLAHABAD SERIES
adjusted or treated as a deposit under
Section 20(4) of the Act, 1972 he
contended that the Court below erred in
holding that it was impermissible. It was
also his argument that the Court did not
even determine the ''first date of hearing'.
In this regard, he relied upon Single Judge
Bench decisions of this Court reported in
(1982) 1 ARC Page 16, Sunt Ram Gupta
Vs. Ratan Prakash; (1984) 1 ARC Page 4
Lacchi Ram Vs. Ist ADJ; (1987) (1)
AWC 354 Badi Uzzaman Vs. DJ,
Kanpur; (1990) 1 ARC 293, Mahadeo
Singh Vs. Sheshnarayan Pathak; (2006)
63 ALR 269 (All.), Satish Kumar Dutta
Vs. Additional District Judge, Kanpur and
judgment dated 14.08.2012 rendered in
the case of Ravi Shankar Kansal Vs.
District Judge, Aligarh, Writ A no. 53074
of 1999.

9.

Learned
counsel
for
the
respondent, Shri Mohd. Sayeed contended
that revisionist having not made the
deposit under Section 20 (4) at any point
of time it was not necessary for the Court
below to determine the first date of
hearing for the purposes of Section 20(4)
of the Act, 1972. He submitted that the
said provision was discretionary in the
sense that the tenant could, if he so chose,
make the said deposit to avoid eviction,
therefore, it was necessary for the
revisionist to have filed an application
evincing his intent to avail the benefit of
the said provision with the request for
treating the amount deposited under the
proviso to Section 17 of the Act, 1887 as
a deposit under Section 20 (4) of the Act,
1972, which was never done, therefore,
the plea was not liable to be accepted and
has rightly been rejected by the Court.
However, on being asked as to whether it
is permissible in law to treat a deposit
made under the proviso to Section 17 of
the Act, 1887 as a deposit under Section
20(4) of the Act, 1972 and to adjust it
accordingly, the learned counsel fairly
stated that it was permissible but an
application was necessarily requried to be
filed in this regard. He also contended
that there was no compliance of Order
XV Rule 5 CPC in response to which Shri
B.K. Saxena submitted that this was not
the ground of rejection by the SCC Court
and in any case the amount had already
been deposited under the proviso to
Section 17 of the Act, 1887. He has relied
upon the decisions reported in 2003 (1)
SCC, E. Palanisamy Vs. Palanisamy;
2003 SCC 433, Balwant Singh and others
Vs. Anand Kumar Sharma and others;
2016 (3) ARC 459, Moinuddin alias
Mamo and 2 others Vs. State of U.P. and
others; 2004 (57) ALR 776, Krishna
Kumar Gupta Vs. Additional District
Judge 14th, Allahabad and others.

10. The only question which this
Court is required to consider in this
revision is as to whether the Court below
was right in rejecting the plea of the
revisionist-tenant regarding permissibility
of adjustment of the deposit made under
the proviso to Section 17 of the Act, 1887
as a deposit under Section 20 (4) of the
Act, 1972 by placing reliance upon the
decision of this Court in the case of
Bhragu Dutt Singh (Supra) and whether it
was right in not deciding thereafter, as to
whether
after
such
adjustment
the
requirements of Section 20 (4) were
satisfied so as to enable the tenant to
avoid eviction or not.

11. The findings of the SCC Court
with regard to other issues have not been
challenged and no arguments were
advanced by Shri Saxena on these
findings, therefore, the said findings have
6 All. University Book Depot Vs. Amit Mishra 1289
attained finality between the parties
including the finding as to the rate of rent
being Rs. 100/- as claimed by the tenant
and not Rs. 375/- as claimed by the
landlord.

12. On a perusal of the decision
of this Court in Bhragu Dutt Singh
(Supra), which has been relied upon by
the Court below, it is found that the said
decision nowhere says that the amount
deposited under proviso to Section 17 of
the Act, 1887 cannot be adjusted or
treated as an amount deposited under
Section 20(4) of the Act, 1972. In fact, in
the said case the question before the
Court below was as to whether such
deposit under the proviso to Section 17
could be adjusted or treated as a deposit
contemplated under Order XV Rule 5
CPC. The Courts below rejected the plea
that it was permissible for treating the
said amount as a deposit under Order XV
Rule 5 CPC. The High Court discussed
the nature of the deposit under the proviso
to Section 17 and held that the said
amount stands as security only against the
ex-parte decree. Once the ex-parte decree
is set aside, the defendant is entitled to
take back that amount. The amount is not
to remain in deposit until the satisfaction
of the decree that may ultimately be
passed thereafter on contest. It is,
however, undisputed that it was not open
to the plaintiff-opposite party to have
withdrawn that amount. Until a specific
order of the Court was passed, the amount
lying in deposit could not be treated as
available for payment of rent or damages
for use and occupation which the
defendant is liable to pay under Order XV
Rule 5 CPC. Now these observations by
this Court nowhere say that the amount
deposited under the proviso to Section 17
of the Act, 1887 cannot be treated as
available for payment under Order XV
Rule 5 CPC. In fact, these observation
clearly state that if a specific order of the
Court is passed then it can be so treated.
Furthermore, the Court set aside the order
of the Court below in the said case on the
ground that the provisions of Order XV
Rule 5 CPC which are penal in nature
should be liberally construed in as much
as the defendant is being shut out from
pleading even true facts in his defence
and that in the said case the Courts below
had not approached the matter from this
angle. It observed that it was incumbent
on the Courts below to have considered
the question of Condonation of the
default. The money was lying in custodia
legis. Furthermore, the High Court
referred to its decision in Lakhveer Singh
vs. Sarla Devi, (Civil Misacellaneous
Case no. 4 of 1975) decided on
02.08.1979 to record that it had opined in
the said case that while Section 20 (4)
was to be construed strictly against the
tenant, in as much as the tenant, who had
become liable to eviction under Section
20 (2) (a), is seeking relief against the
liability, the provisions of Order XV Rule
5 CPC, which are penal in nature should
be liberally construed in as much as a
defendant is being shut out from pleading
even true facts in his defence. It observed
that in the instant case the Courts below
had not approached the matter from this
angle and that it was incumbent on the
Courts below to have considered the
question of condonation of the default as
the money was lying in custodia legis. It
also observed that it is true that until
01.01.1977, the landlord did not have a
right to withdraw the amount without an
order
of
the
Court
but
in
these
circumstances there was no substantial
prejudice to the landlord. It referred to a
decision of the Hon'ble Supreme Court in
1290 INDIAN LAW REPORTS ALLAHABAD SERIES
the case of Duli Chand Vs. Moman
Chand, AIR 1979 SC 1307; wherein it
was held by their Lordships that it was
open to the Court to order payment of the
money which was in custodia legis to the
landlord.

13. The High Court further observed
that although provision construed in that
case by the Supreme Court was different
the fact that requisite money was lying in
custodia
legis
was
a
relevant
consideration which had been wrongly
ignored by the Courts below, and on this
ground the revision was allowed by the
High Court and the orders of the Courts
below rejecting the plea were set aside. In
this view of the matter except for the
passing observations regarding strict
construction of Section 20 (4), there is
nothing in the said judgment which could
persuade the Court below to arrive at the
conclusion that a deposit under Section 17
of the Act, 1887 could not be adjusted or
treated as a deposit under Section 20 (4)
of the Act, 1972. The Court below has
clearly misconstrued the said judgment.
In fact, the reliance placed in the said
judgment upon the decision of the
Supreme Court in Duli Chand, wherein it
has been held that it was open to the
Court to order payment of the money
which was in custodia legis to the
landlord, far from going against the tenant
was in his favour in the facts of the
present case also. The question as to
whether such deposit could be treated as
one under Section 20 (4) of the Act, 1972
was,
strictly
speaking,
not
directly
involved in Bhragu Dutt Singh.

14. In fact, there are other decisions
of this Court wherein it has been held that
a liberal interpretation of Section 20 (4)
of the Act, 1972 should be given for
protecting the object of the said provision
which is in favour of the tenant. In the
decision of this Court in the case of
Lacchi
Ram
(Supra)
the
issues
specifically considered by the Court were
firstly, whether deposit under Section 17
of Provincial Small Causes Courts Act,
1887 for setting aside ex-parte decree
could be taken into account for relieving
the tenant from liability of eviction under
Sub-section 4 of Section 20 of the Act,
1972. Secondly, whether deposit made
prior to the date of first hearing, within
meaning of aforesaid Sub-section could
be deemed to have discharged the tenant
of his application only if an application
was made to that effect on or before the
said date. The Court in the said judgment
held as under on Paragraph 2, 4 and 7.

"
2.
......Sub-section
(4)
manifests Legislature's anxiety to save the
tenant from ejectment. By very nature of
the objective sought to be achieved by this
sub-section it has to be construed
liberally.........."

4. Unconditional, payment or
deposit by the tenant of arrears interest
and cost is the other requirement. The
sub-section does not provide the manner
of deposit. Nor does it require filing of an
application. In fact it could not because
unconditional governs not only deposit in
Court but also to tendering of amount or
payment to landlord. Whether deposit or
payment was unconditional, therefore,
shall depend on facts and circumstances
of each case. It cannot depend on filing or
non-filing of application. In a case where
deposit is made in Court what is of prima
importance is if the amount as required
has been deposited before first date of
hearing. If it has been, then it does not
become conditional merely because no
application had been filed. Nor any oral
6 All. University Book Depot Vs. Amit Mishra 1291
or written request by way of application
filed after date of hearing can be ignored
as it was not made on or first date of
hearing. If deposit is made with no string
attached to it then it can be clarified, if
necessary by subsequent application
which should relate back to the relevant
time that is first date of hearing.
Moreover, if deposit as required, is made
then the last part of the section that is
relieving the tenant against his liability
for
eviction
comes
into
operation
automatically Although word is ''may' but
in the context in which it has been used
and the purpose it seeks to achieve it has
to be read as ''shall'. A decree for eviction
in a suit filed under Section 20(2)(a) of
the Act where the tenant has deposited the
arrears, interest, and costs of the suit at
the first date of hearing shall be illegal.
Therefore, it is the duty of Court under
this sub-section to see it deposit made
with it after deducting deposit under
Section 30 of the Act is sufficient to
relieve the tenant from his liability of
eviction or not. It is not the making of
application, but deposit as contemplated
at the first date of hearing which is
material.

5. So far facts of the case are
concerned, the Courts below appear to
have committed manifest error of law in
refusing to extend the benefit of subsection (4) of Section 20 to petitioner
either because no application was filed or
the one filed did not indicate that deposit
was unconditional. It has already been
seen that no application is necessary
Manifestation of unconditional deposit
could be written or oral either by tenant
of his own or at the instance of the Court.
In the application filed on 24th April,
1975 it was mentioned, ''arrears of rent
have been deposited up-to-date in the
Court of City Munsif, Meerut under
Section 30 is admitted to the plaintiffs
also. Now the disputed rent along with
costs of the suit have also been deposited
in Court of Judge Small Causes by the
defendants. If the Court also came to the
conclusion that defendant had not paid
the disputed arrears of rent to the plaintiff
then for the purposes of default benefit of
Section 20 (4) be given to the defendant
as he has already deposited the disputed
rent again, plus costs of the suit.
Otherwise so extra deposited rent be
returned to the defendant. It clearly
mentioned about the deposit of rent and
cost of the suit etc. Benefit was claimed
under Section 20 (4). Refund was claimed
of excess. This could not be construed as
rendering deposit conditional. Nor the
prayer that if Court finds that petitioner
had not paid rent it may be taken as
deposit under Section 20(4). What is
required to be deposited is the arrears fo
rent, interest and costs. If it had been paid
and petitioner by way of abundant
caution deposited the amount again
claiming that if it was found that he was
in arrears the amount deposited may be
adjusted, it could not be held to be
conditional
deposit.

6. Now comes the most crucial
controversy namely if deposit of Rs.
736.75/- made under Section 17 of S.C.C.
Act could be treated as deposit under
Section 20(4). The suit was decreed ex
parte. Petitioner applied for setting aside
of ex parte decree under Section 17 of
Small Cause Courts Act, and deposited
Rs. 736.75/-, the entire decretal amount,
the condition precedent for moving the
application. The decree was set aside and
order decreeing suit ex parte was
recalled. Although under law the amount
could have been withdrawn by petitioner
but he did not do so and it continued to
remain in deposit with Court at the first
1292 INDIAN LAW REPORTS ALLAHABAD SERIES
date of hearing What would be nature of
this deposit. It could not continue to be
deposit under Section 17 of the Small
Cause Courts Act. At the same time it
cannot be disputed that it comprised of
arrears of rent found due till then, costs
of suit etc. What is urged is that once
decree was set aside ownership reverted
to petitioner. It did not vest in Court. Not
could the opposite party appropriate it
under Sub-section (6) of the Act And that
being one of the incidents of the deposit
under Sub-section (4), the deposit under
Section 17 could not be taken into
account. The argument proceeds on
misapprehension. The amount deposited
by tenant for setting aside of ex parte
decree is in custody of Court. It continues
to be so even after the application was
allowed nd the deree was set aside. Even
in respect of deposit under Sub-section
(4) the landlord does not get any right.
The amount becomes available and it can
be withdrawn by landlord only after filing
of application. Therefore, there is no
charm or magic whether deposit was
made in once capacity or the other so
long it is deposited with Court before first
date of hearing. If from circumstances it
appears that the tenant in order to save
himself from misery or eviction was a
bona fide depositing or had deposited and
complied
with
stringent
and
harsh
conditions provided in Sub-section (4),
then he should not be denied the benefit
on one or the other pretext by finding
loophole due to mistake in not making the
application or not withdrawing the
deposit under Section 17 and then
redepositing it under Sub-section (4). The
word deposit should not be construed in
pedantic manner. It should be understood
and interpreted so as to advance the
object of the provision. The amount
deposited under Section 17 exhausted its
purpose one ex parte decree was set aside
and it became deposit with Court.

7. Reliance was placed by
learned counsel for opposite party on
Prem Pal Gupta Vs. Baboo Ram Garg,
1978(1) All India Rent Control Journal
446, and it was urged that the amount
deposited under Section 17 does not
become ipso facto available for purposes
of Sub-section(4). In that case no
application was made for treating the
deposit under Section 17 of Small Cause
Court as deposit under Sub-section (4). In
this case, however, the petitioner moved
an application on 24th May 1975 stating
that now he had deposited costs of suit
etc. Although it was not said that deposit
under Section 17 may be treated as
deposit under Sub-section (4) but apart
from deposit under Section 7C of Act III
of 1947 and Section 30 of the Act the only
other deposit was under Section 17. The
averment in the application that cost etc.
had now been deposited could not refer to
any other deposit except the deposit
which had been made under Section 17.
Claiming of benefit under Sub-section (4)
for deposit made before Judge Small
Cause Court left no room for doubt that
petitioner had prayed that earlier deposit
may be treated as deposit for purpose of
granting immunity from eviction. The
application may be vague or there may be
some technical flaw. Yet there being no
misgiving
about
its
content
and
petitioner's anxiety to save himself from
eviction he could not be refused relief
because of bad drafting of the application
for which petitioner may not have been
responsible."

15. The Court categorically held that
Sub-section 4 of the Section 20 manifests
legislatures anxiety to save the tenant
from ejectment. By very nature of the
6 All. University Book Depot Vs. Amit Mishra 1293
objective sought to be achieved by this
Sub-section it has to be construed
liberally. It went on to hold that Subsection 4 of the Section 20 does not
require filing of an application Sine qua
non of Section 20 (4) is whether the
amount as required has been deposited in
the Court before the first date of hearing
or not? It was also held that any oral or
written request after the first date of
hearing cannot be ignored in this regard
on the ground that it was not made on or
before first date of hearing. If deposit is
made on or before the first date of hearing
without any strings attached then it could
be clarified, if necessary, by subsequent
application which should relate back to
the relevant time i.e. first date of hearing.
It is not the making of application but
deposit as contemplated at the first date of
hearing which is material. Thus, what
follows, from the said decision is that if a
deposit has been made under the provisio
to Section 17 of the Act, 1887 on or
before the first date of hearing as referred
in Section 20 (4) of the Act, 1972, then,
when on the first date of hearing or even
thereafter an oral or written request is
made for creating such deposit under the
proviso to Section 17 of the Act, 1887, as
one under Section 20 (4) of the Act, 1972,
then firstly it is permissible to do so and
the fact that such request had been made
subsequent to the date of first hearing
would be immaterial if the deposit has
been made prior to it, Secondly, in such
eventuality it would be for the Court to
see if the deposit made with it is sufficient
to relieve the tenant from liability of
eviction or not?

16. In the said case an application
was filed on date of first hearing and the
same was treated to be good enough for
the purpose of Section 20 (4).

17. It has also been held in the
aforesaid decision that once the decree
was set aside under law although the
amount deposited under the proviso to
Section 17 of the Act, 1887 could have
been withdrawn by the petitioner(tenant)
in the said case but he did not do so and it
continued to remain in deposit with Court
at the first date of hearing. It then
considered the position as to What would
be the nature of such deposit? It held that
the nature of this deposit could not
continue to be a deposit under Section 17
of the Act, 1887 as the decree has been
set aside, but at the same time, it could
not be disputed that it comprised of
arrears of rent found due till then cost of
suit etc. The Court repelled the argument
that once the decree was set aside
ownership of the amount deposited
reverted to the petitioner and it did not
vest in the Court nor could the opposite
party appropriate it under Sub-section 6
of the Section 2 of the Act, 1972 and that
it being one of the incidents of the deposit
under Sub-section (4), the deposit under
Section 17 could not be taken into
account. The Court held that the amount
deposited by the tenant for setting aside
of ex-parte decree is in custody of the
Court and it continues to be so. It is not
out of place to once again refer to the
reliance placed by the High Court in
Bhragu Dutt Singh case upon the decision
of the Supreme Court in Phool Chand
(Supra) wherein it was held that it was
open to the Court to order payment of the
money which was in custodia legis, to the
landlord. In Lacchhi Ram case, the same
reasoning has been followed. The High
Court in Lacchhi Ram further held the
amount to be in the custody of the Court
even after the application was allowed
and the decree was set aside. Even in
respect of the deposit in Sub-section 4 of
1294 INDIAN LAW REPORTS ALLAHABAD SERIES
the Section 20 landlord does not get any
right. The amount becomes available and
it can be withdrawn by the landlord only
after filing of application by him, which is
obviously a reference to Sub-section 6 of
Section 20 which requires an application
to be filed by the landlord for withdrawal
of the amount deposited under Subsection 4, therefore, the Court observed
that there was no charm or magic whether
deposit was made in one capacity or the
other so long as it is deposited with Court
before first date of hearing. Most
importantly, it went on to observe that if
from circumstances it appears that the
tenant in order to save himself from
misery
or
eviction
was
bonafide
depositing or had deposited and complied
with stringent and harsh conditions
provided in Sub-section (4), then he
should not be denied the benefit on one or
the other pretext by finding loopholes due
to mistake in making the application or
not
withdrawing
the
deposit
under
Section 17 and then redeposit it under
sub-section (4). The word deposit should
not be construed in pedantic manner. It
should be understood and interpreted so
as to advance the object of the provision.
The amount deposited under Sub-section
17 exhausted its purpose once ex-parte
decree was set aside and it became
deposit with Court. The Court thus held
that it was permissible to treat such
deposit as one under Section 20 (4) of the
Act, 1972. Reference may also be made
in this regard to other decisions rendered
in the case of Badi Uzzaman (Supra)
wherein a deposit made under the proviso
to Section 17 of the Act, 1887 was held to
be liable for consideration as a deposit
under Section 39 of the Act, 1972.
Likewise is the decision of this Court in
the case of Mahadeo Singh(Supra)
wherein it was held that an amount
deposited under Section 20 (4) of the Act,
1972 could be taken into consideration for
the purpose of satisfaction of the
requirement of proviso to Section 17 of
the Act, 1887 and vice versa. Paragraph 7
to 12 of this decision are quoted herein
below.

" 7. To appreciate the point
raised, it may first be seen what is the
purpose for which the decretal amount or
security in lieu thereof is required to be
deposited as condition precedent to
entertain an application for setting aside
the ex parte deree passed by Judge, Small
Cause Court. Clearly, the purpose is that
so long the application for setting aside
ex parte decree is not disposed of, the
decretal amount or the security should be
at the disposal of the Court, so that in
case the application for setting aside ex
parte decree is dismissed, the decree may
be satisfied from the amount deposited or
form the security furnished by the
judgment debtor. In this connection,
observations made in a case reported in
1981 ALJ 989, Smt. Krishna devi Vs.
Shobha Chandra, can be beneficially
noted.

8. The trial Court has attached
mush importance to the fact that the
amount
in
deposit
was
not
an
unconditional deposit as the same was
deposited under Section 20(4) of the Act
No. 13 of 1972 under protest, challenging
the rate of rent. As a matter of fact, it is
here that the trial Court has misdirected
itself. The question of conditional deposit
under Section 20 (4) of Act No. 13 of
1972 has no relevance for the purposes of
consideratio of question whether the
deposit could be accepted as security, if
so offered, under proviso to Section 17(1)
of the Provincial Small Cause Courts Act.
Without recording any finding, whether
6 All. University Book Depot Vs. Amit Mishra 1295
the deposit made was conditional or
unconditional, it may be observed that so
far the prayer for taking this deposit as
security is concerned, there was no
condition attached to it for the purposes
of treating it as security under Section 17
(1) of the Provincial Small Cause Courts
Act. It cannot be said that any condition
was attached for that purpose. The
question whether it was a conditional
deposit or not, under Section 20(4) of the
Act No. 13 of 1972, would be a matter for
consideration while disposing of the case
on merits as well as the effect of such a
deposit. The amount in depoist in the
court is more than the amount as decreed
under ex parte decree. In case the
application for setting aside the ex parte
decree is dismissed, the decretal amount
can very well be realised from the deposit
for which a request was made to take it as
security under proviso to Section 17(1) of
the Provincial Small Cause Courts Act.
No doubt it has been metioned in the
application, moved for accepting the
amount in deposit as security, that the
said amount was deposited under Section
20(4) of the Act No. 13 of 1972, under
protest, but no condition has been
attached for accepting it as security;
rather the prayer is that the amount of Rs.
7,349.70/- which the applicant had
deposited, may be treated as security. In
this connection, it may also be observed
that as soon as the decree has been
passed and so long it subsits the dispute
as regards rate of rent will also be taken
to have been decided by the ex parte
decree, decreeing the rent at the rate of
Rs. 100/- per month as claimed by the
plaintiff opposite party. After a decree
had been passed accepting the rate of
rent as claimed by the plaintiff, it could
not be said that out of the deposit made,
only an amount at the rate of Rs 40/- per
month as claimed by the defendant
revisionist, could only be realised. The
amount in deposit is also more than the
amount decreed at the rate of Rs. 100/-
per month as rent. In the above
circumstances, the trial Court manifestly
erred when it thought that the security of
the amount deposited could not be
accepted as it was a conditional deposit.

9. The trial Court has observed
that the defendant can take back the
amount once ex parte decree is set aside,
but such amount cannot be withdrawn by
the plaintiff under Order XV, Rule 5, CPC
unless specific order is passed. No
specific order for amount in question can
be passed because still it is said to be a
deposit under protest. The above ground
given by the trial Court for not accepting
the request for taking the said amount as
security is not sustainable. It has already
been observed that once a decree has
been passed at the rate of rent as claimed
by the plaintiff, the question of dispute
about the rate of rent ceased to exist.
Whole amount under the decree can be
realised from the security offered by the
defendant-revisionist. In case ex parte
decree is set aside, the character of the
deposit as security will also cease and it
would again be treated as amount
deposited under Section 20(4) of the Act
No. 13 of 1972 and under Order XV,
Rules 5, CPC, if any amount has been
deposited under that provision. If under
the law, the defendant is entitled to
withdraw such a amount, he will certainly
be liable to face the consequences which
may flow in view of the provisions
contained under Section 20(4) of Act No.
13 of 1972 and Order XV, Rule 5,
CPC,Consideration of such a situation or
condition at this stage, as a matter of fact
does not arise.
1296 INDIAN LAW REPORTS ALLAHABAD SERIES

10. I find no merit in the
submission made by the opposite party
that the revisionist could withdraw the
amunt and re-deosit the same under
Section 17 of the Provincial Small Cause
Courts Act. Such an exercise would be
holly unnecessary Once the amount was
still in deposit with the Court, it could
easily be adjusted for satisfying the ex
parte decree in case it was not set aside.
In this connection, a case reported in
1984 ALJ 189; 1984 (1) ARC 4 Lachhi
Ram Vs. First Additional District Judge,
Meerut and others, may be referred. In
that case, the deposits were made under
Section 17 of the Provincial Small Cause
Courts Act. On setting aside the ex parte
decree, it was applied on the first date of
hearing that the deposits already made
under Section 17 of the Provincial Small
Cause Courts Act may be considered for
extending the benefit of Section 20(4) of
Act No. 13 of 1972. It was held that if the
conditions of Section 20(4) of the Act No.
13 of 1972 are fulfilled, the deposit made
under Section 17 of the Provincial Small
Cause Courts Act can be taken into
account for extending benefit under
Section 20(4) of the Act No. 13 of 1972. It
was further held that so long the amount
was in deposit and was available, it is
immaterial whether it was made in one
capacity or the other. The relevant
passage may be quoted as follows:

"Therefore, there is no charm
or magic whether deposit was made in
one capacity or the other so long it is
deposited with Court before first date of
hearing.