M.P Mehrotra, J.:— This petition arises out of the proceedings which have been initiated by a landlord filing a suit for the eviction of his tenant.

2. The facts, in brief, are these. The petitioner is the landlord and he filed the suit against his tenant Kanhai Ram who is the respondent No. 3 in this petition. It was a usual landlord and tenant action in which a relief of eviction was claimed along with the relief for arrears rent and damages for use and occupation. The tenant did not file any written statement but claimed that benefit of Section 20(4) of U.P Act No. XIII of 1972. Evidence was led by the parties and altimately by its judgment dated 30.11.1978, the trial Court dismissed the suit The tenant was given benefit of Section 20(4) of the Act. A true copy of the said judgment is Annexure 5 to the petition. Thereafter, the landlord and the tenant both filed cross-revisions under Section 25 of the Provincial Small causes Courts Act. The revision filed by the landlord was dismissed and that filed by the tenant was allowed. The rate of rent was held to be Rs. 47.50 per month and not Rs. 59.38 per month which had been held to be the rate by the trial Court. Feeling aggrieved, the landlord has come up in the instant writ petition and in support thereof, I have heard Sri. B.D Madhyan, learned counsel for the petitioner and in opposition, Sri. G.P Bhargava Learned counsel for the respondent No. 3 has made his submissions.

3. The learned counsel for the petitioner contended that in the facts and circumstances of the case, the revisional Court below was in error in allowing the revision of the tenant and in dismissing the revision of the landlord. He contended that when on written statement had been filed by the tenant, the Court was bound to decree the suit and in any case non-filing of the written statement could be treated as an admission of the correctness of the averment which had been made in the plaint. The learned Counsel next contended that the defendant tenant himself had deposited the rent calculating the same at the rate of Rs. 74.25 and he had moved an application under Section 20(4) of the Act. A true copy of the same is Annexure 3 to the petition. Annexure 2 to the petition is the copy of the details of the depositing made by the tenant under Section 20(4) of the Act. The learned counsel contended that reading these documents, it was clear that the tenant was admitting that the rate of rent for month was Rs. 7425 and both the Court's below were wrong in thinking that the rent was not the said figure, but a lessor figure. As has been stated above, the trial Court held the said rate to be Rs. 59/- and odd whereas the revisional Court held the same to be Rs. 57.50

4. On the other hand, the learned Counsel for the respondent contended that there was no such admission by the tenant as was sought to be made out and, in fact, the deposit had been made because the tenant wanted to save himself from eviction and, therefore, he deposited the amount as had been claimed in the plaint. The learned counsel also contended that the non-filing of the written statement could not be treated as an admission of the correctness of the averments made in the plaint.

5. A controversy was also raised from the Bar as to whether the suit, which was filed in October, 1976 was to be decided in accordance with the provisions of the Civil Procedure Code before or after its amendment by the Central Act, 104 of 1976 which ultimately came into force on 1st February, 1977. So far as the last aspect of the matter is concerned, it should be seen that sub-section (3) of Section 97 of the Central Act 104 of 1976 clearly lays down:—

“(3) Save as otherwise provided in sub-section (2), the provisions of the Provincial Act, as amended by this Act shall apply to every suit, proceeding appeal or application, pending at the commencement of this Act or instituted or filed after such commencement, notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceedings, appeal or application instituted or filed had been acquired or and accrued before such commencement.

6. In this view of the matter, the amended provisions undoubtedly came into force and the suit had to be decided in accordance with them because admittedly the provisions of sub-section (2) of Section 97 did not apply to the instant case. Sri Madhyan invited my attention to Order VIII Rule 1 C.P.C, sub-section (1) of which lays down as follows:

“(1) The defendant shall, at or before the first hearing or within such time as the Court may permit, present a writen statement of his defence.”

7. Then he further drew my attention to Rule 10 of Order VIII, which lays down as follows;

“10. Procedure when party fails to present written statement called for by Court-Where any party from whom a written statement (is required under Rule 1 or Rule 9) fails to present the same within the time (permitted or fixed by the Court, as the case may be the Court shall) pronounce judgment against him, or make such order in relation to the suit as it thinks fit (and upon such judgment a decree be shall be drawn up).”

8. It was contended that after the amendments effected in the said provisions, the trial Court was bound to produce the judgment on the basis of the plaint allegations when no written statement had been filed by the defendant. It is correct that before the amendment, by the aforesaid Central Act, No. 104 of 1976, the filing of written statement was optional on the part of the defendant unless the court itself directed the defendant, to file a written statement. However, after the amendment a written statement was bound to be filed. Sri G.P Bhargava learned counsel for the respondent statement. However, placed reliance on the following cases to contend that a judgment was not bound to be passed in favour of the plaintiff even if no written statement had been filed and the matter rested in the discretion of the Court. He further contended that even when the amendment in the Civil Procedure Code had come into force, still the court was bound to have fixed a date for the filing of the written statement directing the defendants to file such written statement and in the absence of such an order by the court, there was no locus penetentie and accordingly, no judgment could be passed merely because the defendant had not filed the written statement. The learned counsel placed reliance on the following cases; Mathew Elenjical v. The Nagpur Roman Catholic Dioceson Corpn (P) Ltd.,1 Radhamoni Padhiari v. Tangudu Jagannathan.2 Union of India v. Bhagwan Dass,3 Smt. Raj Rani Saxena v. Yadram Chaurasia.4

9. In my view, the contention of the learned counsel for the respondent is correct. Despite the amendments, the Court's discretion in the matter has been preserved and it is not bound to pass a judgment merely because written statement has not been filed. As has been noticed in the aforesaid Madhya Pradesh decision, there was a difference of opinion amongst the various High Court of this country in regard to the two interpretations of the old old Order VIII Rule 5 C.P.C, which now after the aforesaid amendment has become Order VIII Rule 5 sub-rule (1). The High Court in Madhya Pradesh decision held:

“While construing that provision, the majority of the High Court's had taken the view that non-filing of a written statement did not fall within its ambit. The view of the Bombay High Court, however, was contrary and it had held that non-filing of a written statement must be construed under this provisions as an admission of the plaint. Shriram Surajmal v. Shriram Jhunjhanwala,5 Obviously, sub-rule (2) of Rule 5 has been enacted to give effect to this view of the Bombay High Court and sub-rules (3) and (4) thereafter have been introduced as consequential provisions. The plain-meaning of the unambigous sub-rule (2) of R. 5 is that the non-filing of written statement by the defendant can be construed as an admission of the plaint by the defendant and it will be lawful for the Court to pronounce judgment in plaintiff's favour for this reason alone. It, however, also gives a discretion to the Court to require the facts alleged on the plaint to be proved otherwise than by such implied admission notwithstanding the non filing of written statement. As in the case of sub-rule (1), this provisions also is not be to apply against a defendant under a disability. It is obvious that the discretion given to the Court under sub-rule (2) to require the proof of a feet notwithstanding the non-filing of a written statement is similar to that given by the proviso in sub-rule (1). Thus, sub-rule (2) lays down that as a result of non filing of the written statement by the defendant the Court in its discretion shall have the power to pronounce judgment treating the averments made in the plaint as admitted. It has also been made clear that the Court has a discretion in the matter so that the choice in left to the Court to act in one way or the other depending on the facts of each case. In short, by virtue of sub-rule (2) of R. 5, the Court is empowered to decree the suit in plaintiff's facour merely as a result of non-filing of the written statement but it is not necessary to do so and the Court has been given a discretion to act one way or the other in each case depending on the facts thereof. Sub-rule (3) specifically provides that while exercising its discretion under sub-rule (1) or sub-rule (2), the Court shall have due regard to the fact whether the defendant was represented by a lawyer or had the capacity to engage a lawyer. It is obvious that the Court's discretion would depend on the facts of each case and it has to be a judicial discretion, sub-rule (4) merely provides that were the suit is decreed for non filing of the written statement under sub-rule (2), decree shall be drawn upon that the further appeal would be against the decree.”

10. Therefore, rending Order VIII Rule 10 C.P.C along with Order VIII Rule 5 C.P.C it seems that even though the filing of written statement has been made obligatory and the Court has now been empowered to pass a judgment on the basis of he the plaint on the ground that no written statement has been filed by the defendant still, the discretion of the Court has been preserved and despite the non-filing of the written statement the Court may pass any other order as it may think fit (as laid down in Order VIII Rule 10) or the Court may in its discretion require any particular fact mentioned in the plaint to be proved as laid down in Order VIII Rule 5 sub-rule (2) C.P.C In this view of the matter, the trial court in the instant case was entitled to continue with the proceedings and decide the controversy between the partes without passing a judgment merely on the basis of the point allegation.

11. As stated above Sri, Madhyan's next contention is that in the circumstances there was an admission of the defendant and in the views of the matter, the courts below were wrong in ignoring the said admission. It is well known that the admissions have to be construed in their total background. In the facts of the instant case it has to be emphasised that both the court his below rejected the contention which Sri Madhyan in canvassing presently before me. Neither the trial court nor the revisional court accepted the contention of the landlord that there was an admission of the tenant that the rate of rent was Rs. 74.25 it would not be correct to disturb the finding of both the courts below in such a situation in the narrow ambit of a petition under Article 226 of the Constitution of India. But apart from the said aspect of the matter, it seems to me that really I the tenant did not intend to admit that the rate of rent per month was Rs. 74.25 It would be seen that in his statement in the witness box also be said that he had been paying rent at the rate of Rs. 59.40, that was the enhanced rent which was paid as a result of the notice which he had received from the landlord. Formerly, the rent admittedly was Rs. 47.50 He had been paying the said rent at Rs. 59.40 p.m upto the date of the suit and in fact, tills was the grievance of the landlord on which the suit was filed. According to the landlord's averments in the plaint, the rent should have been paid at the rate of Rs. 74.25 whereas the tenant had been paying it at the rate of Rs. 59.40 In this background, it means to me that the court below were right in holding that the amount which had been deposited under section 20(4) had been done by way of precaution. The tenant did not want to take any risk in the matter and, therefore, he deposited the amount in question under section 20(4) of the Act. In such a situation, it could not be treated as an admission. It is well known that very often with a view to avoid complication arising out of a legal provision, the tenants deposit more than is really payable by them. The landlords cannot be allowed to treat such deposit as an admission of the tenant that the latter is in law really liable to pay the said amount. If any other interpretation is placed then the same is I likely to work hardship in the innocent persons. I gain emphasise that till the I filing of the suit and even during the pendency of the suit, the tenant in his statement clearly stated that he was liable to pay rent at the rate of Rs. 59.40 and that he was paying the same. In this view of the matter, I do not accept the contention of the learned counsel or the petitioner that the courts below should have found the rent payable to be Rs. 74.25 However, I feel that there is great force in the contention of Sri Madhyan that the revisional court clearly misdirected himself in holding that the rate of rent was Rs. 47.50 It should be seen that both the courts below examined the controversy as to whether the landlord had correctly enhanced the rent on the basis of the provisions contained in section 5 of the U.P Act No. XIII of 1972. The trial court held that the notice was had because according to the said court's reasoning the rent could be increased upto Rs. 74.22 and not upto Rs. 74.25 which was the amount which was sought to be fixed by the notice stated to have been given by the land-lord. Thereafter, 7, placing reliance on the decision of S.N Seth J., reported in Someshwar Dayal Seth v. Shri Dwarkadhish ji Mahraj 1950 AWR 77. the court held that the notice was bound to be treated as entirely bad and it was not possible for the landlord to contend that such a notice could be as a treated good one for increasing the rent upto the permissible limits. The revisional court on the other hand held that the landlord had not filed any copy of the alleged notice seeking to increase the rent and, therefore, he was not entitled to claim any increase in the old rent. The revisional court though that the fact that the tenant had been induced to pay more than the agreed rent of 47.50 was of no consequence. It has seeded to me that the landlord was undoubtedly not entitled to claim increased rent not only on the ground that he sought the wrong amount in his alleged notice but also on the ground that the true import of the definition of a standard rent given in section 3???(k) was not appreciated by the courts below. The standard rent has been defined in the said provision as follows:

“(k) Standard rent, subject to the provisions of sections 6, 8, and 10 means.

(i) in the case of a building governed by the old Act and let out at the time of the commencement of this Act.

(a) where there is both an agreed rent payble therefore, at such commencement as well as a reasonable annual rent (which in this Act has the same meaning as in Section 2(f) of the old Act, reproduced in the Scheduled) the agreed rent, or the reasonable annual rent plus 25 per cent thereon; whichever is greater.

(b) where there is no agreed rent, but there is reasonable annual rent, the reasonable rent plus 25 per cent thereon.

(c) where there is neither agreed rent nor reasonable annual rent, the rent as determined under section 9.

(ii) in any other case, the assessed letting value for the time being in force, and in the absence of assessment, the rent edetermined under section 9”.

12. Now it should be seen that if 25 per cent of reasonable annual rent was sought to be increased on the ground that such reasonable annual rent was more than the agreed rent, then it had to be shown as to what reasonable annual rent was in the instant case. The reasonable annual rent itself was definad in the repealed U.P Act No. III of 1947 and the said definition has been incorporated in the new Act schedule as follows:—

“(f) reasonable annual rent ‘in the case of accommodation, constructed before July 1, 1946 means.

(1) If it is separately assessed to municipal assessment, its municipal assessment plus 25 per cent thereon.

(2) If it is a part only of the accommodation so assessed, the proportionate amount of the municipal assessment of such accommodation plus 25 per cent, thereon.

(3) It is not assessed to municipal assessment.

(i) but was held by a tenant on rent between April, 1, 1942 and June 30, 1946, fifteen times the rent for one month nearest to and after April, 1, 1942 and

(ii) If it was not so held on rent, the amount determined under section 3-A and in the case of accommodation constructed on or after July 1, 1946, means the rent determined in; accordance with section 3-A”.

13. Looking to the said definition, it is clear that ‘reasonable annual rent’ in the case of accommodation constructed before July 1, 1946, when the accommodation was separately assessed in the municipal assessment, it is municipal assessment plus 25 per cent thereof. The Municipal assessment was defined in Section 1(e) of the old Act and it meant the assessment which was in force on April 1, 1942 in respect of the accommodation which was assessed on or before the said date and the first assessment made after April, 1, 1942 in respect of the accommodation after such date. It is, thus, clear that to find out reasonable annual rent in the instant case, it was necessary that it should be found out as to what was the municipal assessment which was prevailing on 1st April, 1942 or if the building was assessed thereafter, then the first assessment made by the Municipality. However, in the instant case the matter has not been considered in the light of the aforesaid angle. It is, therefore, clear that the increase of rent which was sought by the landlord was legally not open to him and the courts below, as I have stated above, rightly rejected the said claim. However, in my view the revisional court was wrong in thinking that the payment of the rent by the tenant for a period of about two years at the rate of Rs. 59.40 per month was of no consequence. It is obvious that when a tenant had been paying for such a long duration without any protest, then such payment acquires the status of the agreed rent, unless it could be shown that some fraud etc. had been played by the landlord. It was not open to the tenant to pay rent without any protect for two years and then to contend that the said rate was not the correct rate. In fact, in his statement also the tenant did not suggest that he was not liable to pay rent at the rate of Rs. 59.40 He himself admitted that the landlord increased the rent from Rs. 47.50 to Rs. 59.40 He did not take any exception to the said increase. In this background, the revisional court wrongly held that the rate of rent between this period was Rs. 47.50 Accordingly, I allow this petition and quash the judgment of the revisional court (Annexure 6). The judgment of the trial court is hereby restored. It is directed that after the necessary adjustment under section 20(4) of the Act on the basis that the rate of rent payable by the tenant was Rs. 59.40, the balance amount, if any, any, should be refunded to the tenant respondent no. 3. In the circumstances, there will be no orders as to costs.

14. Petition allowed.