S.U Khan, J.:— At the time of hearing no one appeared for the respondent No. 2 tenant, hence only the arguments of learned Counsel for the petitioner-landlord were heard.

2. This is landlord's writ petition. Landlord filed S.C.C Suit No. 24 of 1987 against tenant respondent No. 2, Uma Dutta Chaturvedi for eviction on the ground of default and recovery of arrears of rent. Suit was decreed by J.S.C.C/Civil Judge, Kanpur Dehat through judgment and decree dated 20.10.1992 Against the said judgment and decree, tenant respondent No. 2 filed S.C.C Revision No. 4 of 1992. Vth A.D.J, Kanpur Dehat allowed the revision on 27.10.1997, set aside the judgment and decree of eviction passed by the Trial Court by granting benefit of section 20(4) of U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 to the tenant. However, Revisional Court permitted the landlord to withdraw the amount deposited by the tenant. This writ petition is directed against aforesaid Revisional Court's judgment and order.

3. Property in dispute is a house situate on the ground floor, consisting of two big rooms, verandah, three small rooms and Angan, rent of which is Rs. 35/- per month.

4. Tenant pleaded that petitioner was not the only landlord as house belonged to his father and after father's death, petitioner and his brother and sister also inherited the ownership. Trial Court held that suit was maintainable, however Revisional Court reversed the said point also. Revisional Court held that Kumari Kamini was also co-landlrod owner, hence notice as well as suit were bad as Kumari Kamini did not join with the petitioner in the notice and the suit. This view of the Revisional Court is utterly erroneous in law. Supreme Court in India Umbrella Manufacturing Co. v. V. Bhagagabandei Agarwalla . 2004 55 ALR 98 SC, and Mohinder Prasad Jain v. Manohar Lal Jain. . 2006 63 ALR 506 SC, has held that even one of the owners can institute suit for eviction against tenant and he need not show the consent of the other owners Kumari Kamini at no point of time stated that she did not support her brother, plaintiff in giving the notice and filing the suit.

5. As far as question of benefit of section 20(4) of the Act is concerned, the following dates are relevant.

6. Suit was filed on 24.12.1987 Summons were issued fixing 15.2.1988 On 29.3.1988, defendant filed application for supplying copy of the plaint. Similar applications were subsequently also filed by the tenant. On 2.7.1988, the suit was dismissed in default and was restored on 2.3.1990 Thereafter, an order was passed that written statement should be filed by 27.4.1990 On 28.4.1990, tenant sought one month's time to file written statement. Revisional Court held that as time for filing written statement was sought on 28.4.1990 and no complaint was made regarding non-receipt of copy of plaint, hence, it would be assumed that by that date, tenant had got the copy of the plaint. Further time to file written statement was sought on 28.5.1990, which was granted. Ultimately, written statement was filed on 13.9.1990, which was taken on record and thereafter 16.10.1990 was fixed for final hearing. The Trial Court has categorically held that deposit was made on 13.9.1990 (under issue No. 3, Trial Court has mentioned that Rs. 3,200/- was deposited). On 16.10.1990, an order was passed to the effect that parties should give their evidence on 22.11.1990 As tenant had deposited the entire required amount before the said date, hence he was entitled to the benefit of section 20(4) of the Act.

7. Section 20(4) of the Act is quoted below:

“20. Bar of suit for eviction of tenant except on specified grounds.—

(1) …………………….

(2) …………………….

(3) …………………….

(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 from him (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent 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 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. The Supreme Court in Subhash Chand Jain v. 1st Additional District and Sessions Judge, Saharanpur . 1989 2 SCC 110, has held that if suit is dismissed in default and thereafter restored, then no date before dismissal of the suit can be taken to be first date of hearing.

9. In K.K Gupta v. A.D.J . 2004 2 ARC 659., after discussing five authorities of the Supreme Court on the point, I have held that if written statement is filed with the permission of the Court and the same is taken on record, then no date prior to the date of filing of the written statement can be taken to be the date of first hearing.

10. In the instant case after restoration of the suit, twice or thrice time was granted to the tenant to file written statement and ultimately written statement was filed on 13.9.1990 and on the same date deposit was also made. Until written statement is filed, Court cannot apply its mind to the controversy involved in the case, hence no date prior to the date of filing of written statement can be permitted to be first date of hearing provided that written statement is filed within extended time granted by the Court and with the permission of the Court.

11. Accordingly, even though I do not agree with the view of the Revisional Court that suit was not maintainable and I expressly hold that suit was maintainable but writ petition is to be dismissed on the ground that Revisional Court rightly held that tenant had made the requisite deposit on the date of first hearing, hence he was entitled to the benefit of section 20(4) of the Act.

12. Writ petition is accordingly dismissed.

13. I have held in Khursheeda v. A.D.J . 2004 55 ALR 586. and H.M Kichlu v. A.D.J . 2004 57 ALR 485., 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.

14. In the aforesaid authority of Khursheeda (supra), I placed reliance upon the Supreme Court authority of M.V Acharya v. State of Maharashtra . 1998 2 SCC 1, 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 LRs. v. Union of India . 2008 5 SCC 287, part of Para-29 and 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 non-existent.

34. In Malpe Vishwanath Acharya v. State of Mahrashtra (supra) the Court found that the criteria for determination and fixation of rent by freezing or by pegging down of rent as on 1.9.1940 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 and was coming to an end on 31.3.1998”

15. 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 in Shangrila Food Products Ltd. v. Life Insurance Corporation of India . 1996 5 SCC 54, 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.”

16. 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 bona fide 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 . 1996 5 SCC 54, 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.”

17. Therefore, in H.M Kitchlu v. A.D.J . 2004 57 ALR 485., I have held that the same principle of enhancement of rent to a reasonable extent may be made applicable while dismissing the writ petition of the landlord for the reason that by doing so Writ Court approves the protection of Rent Control Act granted to the tenant by the Courts below.

18. Property in dispute is a house consisting of five big and small rooms and other amenities. Existing rent of Rs. 35/- per month is virtually as well as actually no rent.

19. Accordingly, it is directed that w.e.f August, 2008 onwards tenant shall pay rent @ Rs. 1,000/- per month. Landlord is directed to send certified copy of this judgment to the tenant through registered post.

Petition Dismissed.