1. This writ petition is directed against the order dated 24-3-1989 passed by Second Additional Munsif, Kanpur Nagar, whereby he struck off the defence of the petitioner and the order dated 15-11-1990 passed by respondent No. 1, affirming the said order in revision.

2. The dispute relates to premises No. 87/157, Acharya Nagar, Kanpur. The petitioner was let out plots Nos. 20 and 21, G.T Road. Kanpur. On these plots, he raised constructions, respondent No. 3 purchased the disputed property from its previous owner Km. Asha Lata and Ashok Kumar Srivastava by registered sale deed. Respondent No. 3 sent a composite notice to the petitioner dated 8th July, 1987, demanding arrears of rent for the period 27-10-1986 to 30-6-1987 and terminating the tenancy. The petitioner sent a reply on 30th July, 1987, stating that rate of rent is Rs. 15/- per month and the rent for the period up to 30th June, 1987 has already been deposited in proceedings under S. 30 of U.P Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the ‘Act’). On 28th August, 1987 respondent No. 3 files suit No. 1465 of 1987 against the petitioner in the court of Munsif City, Kanpur, for arrears of rent, ejectment and damages on the allegations that the petitioner was let out an open piece of land and, therefore, U.P Act No. XIII of 1972 was not applicable. The rate of rent was Rs. 30, per month and the tenant has not complied with the notice sent to him and he was, therefore, liable for ejectment. The petitioner filed written statement on 30th May, 1988. He took the plea that though open piece of land was taken on rent, but he was permitted to raise permanent constructions by the land-’ lord, and, on the basis of such consent, he had raised permanent constructions and, therefore, he was entitled to the protection of S. 29 of the Act. The rate of rent is Rs. 15/- per month and he had already deposited rent for the period up to July, 1987, in the Court in proceedings under S. 30 of the Act. The Court has no jurisdiction to entertain the suit. On 8th August, 1988, respondent No. 3 filed an application to strike off the defence of the petitioner under the provisions of O. XV R. 5 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) on the failure of the petitioner to deposit rent in accordance with the said provision. The petitioner filed objections opposing the said application stating that the rent for the period up to July, 1987, had already been paid and no rent was due on the date of filing of the suit.

3. On 9-2-1989, counsel for the petitioner moved an application to permit the petitioner to deposit the amount due up to the date and condone the delay in complying with the provisions of O. XV R. 5 of the Code. In the application, he has stated that he was engaged as a counsel by the defendant to defend his case. He thought that the rent up to July, 1987, had already been deposited in proceedings under S. 30 of the Act and the rent claimed in the suit was up to July, 1987, he advised his client not to deposit the amount claimed by the plaintiff in the suit as the petitioner was not defaulter, but on looking carefully the provisions of O. XV R. 5 of the Code, he realised mistake that the tenant was liable to deposit rent for the period subsequent to the filing of the suit. The trial court took the view that the counsel did not file any affidavit in support of his averments in the application and, therefore, there was no justification for allowing the application to condone the delay. The defence of the petitioner was struck off on 2-3-1989. The petitioner filed revision against the said order and the revision has been dismissed by respondent No. 1 vide order dated 15-11-1990. These orders have been challenged in the writ petition.

4. I have heard Sri S.N Verma, learned senior counsel for the petitioner and Sri K.M Dayal, learned senior counsel for the respondent No. 3.

5. Learned counsel for the petitioner has raised three submissions. His first submission is that a suit for eviction relating to a building can be filed in the court of Judge, Small Causes. Article 4 of the Second Schedule of the Provincial Small Cause Courts Act makes an exception relating to a suit by the lessor for the eviction of a lessee from a building after determination of his lease and for the recovery from him of compensation for the use and occupation of that building after determination of lease. Such suits are cognizable by the Court of Judge, Small Causes. The building was existing over the disputed land and such suit will be cognizable in the Court of Judge, Small Causes. The provisions of O. XV R. 5 of the Code will be applicable only to such suits.

6. The applicability of the provisions of O. XV R. 5 of the Code is independent of the provisions of Provincial Small Cause Courts Act. Order XV R. 5 of the Code nowhere uses the word “building” as used in Art. 4 of Schedule 2 of the Provincial Small Cause Courts Act. The relevant portion of 0. XV R. 5 of the Code reads as under:—

“Striking off defence on failure to deposit admitted rent etc.— (1) In any suit by lessor of the eviction of a lessee after the determination of his lease and for the recovery from him of rent or ompensation for use and occupation, the defendant shall, at or before the first hearing of the suit

7. The language of this provision nowhere uses the word “building”. The eviction may be sought from building or open piece of plot or such property which may have been subject matter of the lease. The word used in Art. 4 of Schedule 2 of the Provincial Small Cause Courts Act is “building”. The relevant provi sion is quoted below:—

“(4) A suit for the possession of immoveable property or for the recovery of an interest in such property, but not including a suit by a lessor for the eviction of a lessee from a building after the determination of his lease, and for the recovery from him for compensation for the use and occupation of that building after determination of lease.”

(Emphasis supplied)

8. It is thus clear that under the provisions of O. XV R. 5 of the Code, one cannot read the word “eviction” of a lessee from a “building”. Order XV R. 5 of the Code is thus applicable to all suits for the eviction of a lessee after the determination of his lease from any property.

9. Learned counsel for the petitioner placed reliance upon paragraph 89 of the decision in Smt. Chandra Rani v. Vikram Singh, 1979 All LJ 401 (FB) wherein certain observations were made that R. 5 of O. XV of the Code has been made applicable to all suits filed for ejectment by a lessor against a lessee and all suit of such nature have become cognizable by a Judge Small Causes. The Court was considering validity of the provi-sions of 0. XV R. 5 of the Code and it has not been held that O. XV R. 5 of the Code is not applicable to such suits where a lessor seeks eviction from property other than a building.

10. In regard to the second submission, it is contended that the suit relates to a “building” and, therefore, it is cognizable only by a Court of Small Causes. The petitioner had taken a piece of land by an agreement dated 16th January, 1968 whereby the lessor had granted permission to raise permanent constructions and in pursuant of such agreement the permanent constructions were raised and he is running a factory over such land under the name and style of M/s. Mohan Rice and Oil Mills. He referred to paragraph 2 of the agreement which authorises the tenant to raise constructions over the plots at his own expenses and on termination of the lease he was entitled to remove his constructions, other fixtures and fittings at his own costs.

11. Learned counsel for the respondent contended that this deed is unregistered and is inadmissible in evidence and any terms of such agreement cannot be looked into ascertain any facts mentioned therein. It is, however’, not necessary to decide this controversy at this stage. The jurisdiction of the court depends mainly on the allegations made in the plaint. The plaintiff had filed the suit on the allegations that the petitioner is a tenant of open piece of land. It is the tenant who is claiming the protection of S. 29-A of the Act. This provision was introduced by U.P Amendment Act No. 28 of 1976 with effect from 5th July, 1976 prior to incorporation of this provision a tenant to whorn the land was let out was not entitled to any protection from eviction even though he may have raised any building over the land let out to him with the consent of the landlord. Section 29-A of the Act has given protection from eviction of such tenant provided he fulfils the conditions mentioned therein, namely:

(i)the tenant has erected permanent structure with the landlord's consent and incurred expenses in execution thereof;

(ii) he pays the rent mutually agreed upon between him and the landlord after 5th July, 1976, taking into consideration the constructions raised by him and if not mutually agreed upon the annual rent as determined by the District Magistrate; and

(iii) no ground exists for eviction against him as contemplated under the provisions of S. 20 of the Act.

12. The consent of the landlord must befor raising permanent structure and not fortemporary structure. The question as towhether there was consent of the landlord to raise permanent structure and on such con sent the tenant raised permanent structure and incurred expenses has to be proved by the tenant.

13. The tenant cannot claim the benefit of S. 29-A of the Act unless he enhances the rent on the basis of the mutual agreement between hrm and the landlord after enforcement of Amending Act No. 28 of 1976 or applies to the District Magistrate for determination of annual rent payable in respect of such land at the rate of ten per cent per annum of the prevailing market value of the land as provided under sub-sec. (5) of S. 29-A of the Act. The landlord let out the land and the rent was fixed for such open piece of land. The rent has to be enhanced under the provisions of sub-sec. (5) of S. 29-A of the Act. Till the rent is enhanced and the tenant agrees to pay such amount in accordance with the said provi sion, the landlord will be justified in treating the property let out to him as a land. A Full Bench of this Court in Trilok Chand v. Rent Control and Eviction Officer, S.D.M, Naku, District Saharanpur, (1987) 1 All Rent Cas 290 : (1987 All LJ 763) has held that an agreement referred to in S. 29-A(4) of the Act refers to agreement entered into between the parties after coming into force of S. 29-A of the Act and if there is no such agreement, the District Magistrate shall on the application of the landlord or the tenant, determine the annual rent payable in respect of such land at the rate of ten per cent per annum of the prevailing market value of the land and such rent shall be payable except as provided in sub-sec. (6) of S. 29-A of the Act from the date of expiration of the term for which the land as let out or from the commencement of the section whichever is later.

14. Sub-sections (4) and (5) of S. 29-A of the Act read together contemplate that the rent which was agreed between the landlord and tenant in respect of land shall not be treated as the rent for getting protection of S. 29-A of the Act. Till such time, there is no agreement to pay the enhanced rent after 5th July, 1976, or any order of the District Magistrate determining the rent as provided in sub-sec. (5), the landlord can treat the premises let out to the tenant as land. In case the suit is pending on the date of U.P Act No. 28 of 1976 came into force and the tenant wants protection of S. 29-A of the Act, he has to make an application under S. 29-A(6) of the Act, but where the suit is filed after the enforcement of the Amending Act and, if the tenant wants the protection of this section, he has to apply to the District Magistrate for determining the annual rent under S. 29-A(5) of the Act except in case of mutual agreement. The intention of the Legislature seems to be clear that the rent which was agreed upon between the landlord and tenant was in respect of the land and the same rent cannot be taken as rent for the purpose of granting protection under S. 29-A of the Act to a tenant of land.

15. The protection, however, cannot be given under Sec. 29-A of the Act if the landlord roves that the ground exists for his eviction as provided under S. 20 of the Act. In - Smt. Riazi Begum… v. Adarsh Kumar Jauhari…., (1985) 2 All Rent Cas 89 : (1985 All LJ 680), it was held that S. 20 of the Act applies in respect of even such building which has been raised by the tenant himself with the consent of the landlord as contemplated under S. 29-A of the Act. A tenant of a land cannot be placed better than a tenant of a building.

16. Learned counsel for the petitioner contended that sub-sec. (1) of S. 29-A. of the Act provides that the expressions “tenant” and “landlord” shall have the meanings respectively assigned to them in clauses (a) and (j) of S. 3 with the substitution of the word “land” for the word “building” and the moment it is proved that the permanent constructions were raised by the tenant with the consent of the landlord, such constructions, as defined under S. 3(j) of the Act, shall be a building and the suit will lie only in the Court of Small Causes. Firstly, this is a question of fact which has to be decided after taking into consideration the evidence on record produced by the parties in the suit and secondly it cannot be treated as a building unless other conditions relating to the land, as provided in sub-sees. (4) and (5) of S. 29-A of the Act, are satisfied. The landlord shall be “entitled to treat the land let out as a land and not a building till those conditions are satisfied. In the instant case, the plaintiff has not admitted that the petitioner has raised any constructions with his consent or there was any mutual agreement relating to rent as contemplated under sub-sec. (4) of S. 29-A of the Act. On such an allegation, the suit was cognizable only by the Civil Court.

17. In Radhey Shyam v. District Judge, Allahabad, 1981 All Rent Cas 693 : (1981 All LJ 807), it was held that where the suit is filed by the landlord claiming that he let out the vacant land and the tenant had raised the constructions, the suit shall still lie in the Civil Court and not in the Court of Judge, Small Causes.

18. In case the landlord files a suit treating the disputed property as a building and seeks eviction from such building, the suit would lie in the Court of Judge. Small Causes but where the suit is filed for eviction of a tenant claiming the disputed property as a land, the suit would lie in the Civil Court though in such suit the tenant may claim protection of S. 29-A of the Act:

19. The third submission of learned counsel for the petitioner is that respondents 1 and 2 acted illegally in rejecting the application for condonation of delay in depositing the amount as provided under O. XV. R. 5 of the Code. The petitioner sought condonation of delay on the ground that he could not deposit the amount as contemplated under O. XV R. 5 of the Code on the ground that his lawyer gave wrong advice. The courts below rejected the application taking the view that the counsel had not filed any affidavit and secondly, the petitioner had admitted that the rent had been deposited in proceedings under S. 30 of the Act only for the period till July, 1987, but there was no explanation for depositing the amount of rent after the said, period in the court where the suit is pending.

20. The Court has to consider the provisions of 0. XV R. 5 of the Code in the context of its objects and purpose for which it was enacted. The Supreme Court in Bimal Chand Jain v. Sri Gopal, (1981) 3 SCC 486 : AIR 1981 SC 1657 : (1981 All LJ 908) held that the word ‘may’ in sub-rule (1) merely vests power in the court to strike off the defence but does not oblige it to do so in every case of default. The discretion is left to the Court to strike off the defence or not taking into consideration the attending circumstances, the object for which this provision may be affected in case the defence of a tenant is struck off. The main object of enactment of this provision is that the landlord may not suffer in any way in receiving the rent which is admittedly due and further while the suit is pending the tenant deposits rent every month in Court. In case the tenant defaults in payment of such rent every month or does not deposit the arrears of rent due as admitted by him on the date of first hearing of the suit, the defence is liable to be struck off. This penal provision has been enacted to ensure payment of rent. If the court condones the (the default, the defence) will not be struck off but in case the defence is struck off, the tenant would be totally-deprived of his right to raise any plea in his defence. The court has to see the equity from both the sides. In a case where an application lor condonation of delay in filing an appeal or an application is filed, as contemplated under S. 5 of the Limitation Act, the rights of the other side which may have accrued by lapse of time to the/other side will be negatived. In that case, the court has to consider the rights of other side also in case an application is allowed. The effect of condoning the delay varies in the context of provision of a statute. In a case where a deposit is to be made under S. 20 of the Act, S. 5 of the Limitation Act has not at all been made applicable.

21. The provisions of 0. XV R. 5 of the Code is penal in nature. In Prem Narain Pathak v. 1st Addl. District Judge, Shah-jahanpur, 1983 All WC 876 : (1984 All LJ 361), R.M Sahai, J. pointed out that the Legislature never intended that this penal provision to be utilised harshly to scuttle the defence of a tenant on one or the other technically. The Court, however, is not bound to condone the delay in each and every case otherwise it will be’ totally defeating the conditions laid down under O. XV R. 5 of the Code, but while considering the explanation which may be offered by a tenant, it has to keep in mind the object of the provisions bona fide of the tenant in not depositing the amount and other attending circumstances.

22. In the instant case, the petitioner sought condonation of delay on the basis of wrong legal advice given by his counsel. The courts below have taken the view that the lawyer, who had given the advice, did not file any affidavit. The mistaken advice of a lawyer is a ground for condonation of delay in not complying with the provisions of 0. XV R. 5 of the Code provided such advice is bona fide. A party to a litigation looks upon the advice of his own counsel for taking any legal action or complying with the provisions of any Statute. Such party cannot be held guilty of negligence merely because he bona fide acted on the advice of his counsel. In State of West Bengal v. Administrator, Howrah Municipality, (1972) 1 SCC 366 : AIR 1972 SC 749, it was held that if a party had acted in a. particular manner on a wrong advice given by his legal advisor, he cannot be held guilty of negligence so as to disentitle the party to plead sufficient cause under S. 5 of the Limitation Act.

23. Learned counsel for the respondent contended that a party cannot rely upon the wrong legal advice unless it is shown that it was bona fide i.e the counsel had given advice after due care and attention. He placed reliance upon the decision in Devi Prasad & Others…Applicants; v. State Of U.P…Opp. Party., (1982) 1 All Rent Cas 617 : (1982 All LJ 1275), wherein it was held that it is not sufficient for the applicant to show that he acted on the advice of a counsel, but the court must be further satisfied that the advice was given with due care and attention. This proposition is well settled under law, but when it is a bona fide, has to be examined in each case. The court has to keep in mind the advice given by the counsel and the act of a party relying upon such advice in good faith and thereafter acting upon it. In case a plea of legal advice is taken only to cover up hk negligence, such plea cannot be accepted when it is found untrue or not bona fide.

24. In the instant case, the petitioner was advised to deposit the amount in the court under S. 30 of the Act. He deposited the amount even before the suit was filed. He must have acted on the legal advice of his counsel. The suit was filed on 28th August, 1987 and prior to that date he was depositing the rent. The desire on the part of the tenant to pay rent was there and he had deposited therein for the period till July, 1987. The landlord had sent notice claiming rent till 30th June, 1987. The tenant did not deposit rent for the period i.e after filing of the suit. The counsel for the petitioner moved an application duly signed by him and in that application he stated that he was engaged by the petitioner to defend his case and he had wrongly advised his client not to deposit the amount as the rent had been deposited under S. 30 of the Act and it was only when he carefully gone through the provisions of O. XV R. 5 of the Code, he realized his mistake. Along with the application, he submitted a tender to deposit the entire amount due up to date. The petitioner had been depositing rent in proceedings under S. 30 of the Act on the legal advice of the counsel. The court has not doubted the bona fide of the tenant nor the bona fide of the counsel. The court, however, took the view that he had not filed his own affidavit.

25. If certain facts are within the personal knowledge of a counsel appearing for a party and he moves an application duly signed by him stating certain facts, the court should normally accept that it is correct taking statement from a counsel who is expected to speak truth in the court. In case, however, his statement is challenged taking specific objection of the facts stated by the counsel in his application, the court may ask for affidavit of such counsel. In City Board, Mathura v. Ashok Kumar, 1979 All LJ 333, the Judge, Small Causes struck off defence of the tenant and the explanation of the tenant was not accepted for the reason that the counsel, who made statement before the court that he had given a wrong advice, did not file any affidavit. It was held that the court should not have insisted upon the affidavit and should have accepted the statement of the counsel.

26. Learned counsel for the respondent placed reliance upon Bhola Nath Jaiswal v. District Judge, Mirzapur, (1986) 1 All Rent Cas 209, in support of his contention that the lawyer should have filed his affidavit stating that he had given wrong advice. In this case the Court had found that the lawyer in advising the petitioner to file restoration application did not give any wrong advice. Moreover, the petitioner did not disclose the name of the counsel either before the appel late authority or before the High Court nor his affidavit was filed that he did not give the advice to the petitioner to file appeal. In that case, there was nothing to show that the lawyer himself had filed an application stating that he had himself given the advice. On the other hand, the petitioner, who relied upon some wrong legal advice, even did not disclose the name of the counsel. There was no material before the Court to come to the conclusion that the lawyer had actually given the advice as alleged by the petitioner in that case. Learned counsel for the petitioner further placed reliance upon the decision in Mrs. Manju Chaudhary v. Dulal Kumar Chandra, (1988) 1 SCC 363 : (AIR 1988 SC 602), wherein the Court held that in case the explanation given by the tenant is not foundcorrect, the court has a duty to strike out the defence under S. 13 of Bihar Building (Letting, Rent and Eviction) Ordinance, 1982. In that case, the tenant had pleaded that he could not deposit the rent in time as there was Bank strike, but it was found that there was, in fact, no Bank strike and his plea was false. In the instant case, the counsel for the petitioner himself had stated that he had actually given wrong advice and narrated the circumstances under which he had given such advice. The court has not doubted his bona fide. In these circumstances, the courts below taking erroneous approach of law rejected the application for condonation of delay and struck off the defence of the petitioner. In the result, the writ petition is allowed. The order dated 24-3-1989 passed by respondent No. 2 and the order dated 15-11-1990 passed by respondent No. 1 are hereby quashed. As the suit was filed in the year 1987, respondent No. 2 is directed to decide the suit expeditiously possibly within six months from today. The parties shall, however, bear; their own costs.

27. Petition allowed.