K.N. Singh, J.

1. This revision application under Section 115 of the Code of Civil Procedure had been preferred by the Defendant against the order of the trial court striking off his defence Under Order XV Rule 5 Code of Civil Procedure and also against the order of the District Judge affirming that order in revision.

2. The Plaintiff opposite party filed suit for recovery of arrears of rent and ejectment against the Defendant applicant with the allegations that inspite of repeated reminders and service of notice of demand, the Defendant-applicant had failed to pay arrears of rent for the period 1-5-1970 to 1-11-1970. The Defendant contested the suit and asserted that he was not a defaulter he has been offering rent to the Plaintiff but she refused to accept the same. He tendered the rent to the Plaintiff by money order but on her refusal, he had deposited the same in the Munsifs Court in proceedings under Section 7-C of the U.P. Act No. III of 1947. The Defendant further asserted that on receipt of notice of demand, they again tendered rent to the Plaintiff-opposite party through money order for the period May, 1970 to November 1970 but she again refused to accept the same. The Defendant thereafter deposited the rent in the Munsifs Court and he has continued to deposit rent and nothing was due from him. The Plaintiff did not file any objection in the Munsifs Court and he is entitled to withdraw the amount deposited by the Defendant.

3. The Plaintiff made an application before the trial court for striking off Defendant defence on the ground that the Defendant had failed to make the necessary deposit as contemplated by Order XV Rule 5 Code of Civil Procedure. The Defendant contested the application and asserted that since he had already deposited the entire amout of rent in proceedings under Section 7-C of U.P. Act. No. III of 1947, nothing was due from him and his defence could not be struck off. The trial court held that any deposit made by the Defendant in proceedings under Section 7-C of 1947 Act could not enure to his benefit in the suit for the purpose of Order XV Rule 5 Code of Civil Procedure. On these findings, the trial court struck off the defence. On revision by the defendant, the District Judge affirmed the trial courts order.

4. The learned District Judge affirmed the order of the trial court on two grounds, firstly, that during the pendency of the suit, U.P. Act. No. XIII of 1972 came into force as a result of which proceedings under Section 7-C of 1947 Act could not be taken and the Defendant could not make any deposit in those proceedings. Instead he should have taken proceedings under Section 30 of the U.P. Act No. 13 of 1972. Since the Defendant did not make any deposit under Section 30 of the 1972 Act, the deposit made by him in Section 7-C proceedings could not be taken into account. Secondly, the learned District Judge held that any deposit made by the Defendant in Section 7-C proceedings, even if valid, could not be taken in to account for the purpose of Order 15 Rule 5 Code of Civil Procedure.

5. Learned Counsel for the Defendant-applicant urged that the courts below acted in excess of their jurisdiction in striking off the defence as nothing was due from the Defendant and he bad made no such admission in the written statement the provision of Order 15 Rule 5 Code of Civil Procedure were not attracted. In Ladly Prasad v. Ram Shah Billa 1975 AWC 602, a Division Bench held that if the Defendant does not admit that any amount is due to the Plaintiff as rent or damage for use or occupation it need not make any deposit. At that stage, the court is not required to decide the question whether any amount is really due and whether the lease has validly been terminated. The court cannot compel the Defendant to deposit the amount claimed by the Plaintiff if the Defendant does not admit any amount due from him.

6. Order XV Rule 5 Code of Civil Procedure as applicable in the State of U.P. confers jurisdiction on the court to strike off defence In a suit by lessor for eviction of lessee from an Immovable property if the Defendant falls to deposit the entire amount of rent or compensation for the use and occupation admitted by him to be due at or before the first hearing of the suit and he further continue to deposit the rent or compensation for the and occupation at the rate admitted by him. It is significant td note that the deposit is required to be made only if the lessee admits the amount to be due from him. If the lessee, for any reasons, does not admit the amount, to be due from him, the question of striking off defence on his failure to make the deposit will not arise. The question of striking off defence arise only in the case where the Defendant admits that rent was due to the Plaintiff.

In the instant case, the Defendant had clearly asserted in his written statement that he had deposited the entire rent in the Munsifs Court in proceedings under Section 7-C of 1947 Act and, nothing was due from him. In view of this assertion, there was no admission by the Defendant. On these facts Order XV Rule 5 Code of Civil Procedure was not attracted at all and the courts below exceeded their jurisdiction in striking off the applicants defence.

7. But even assuming that Order XV Rule 5 Code of Civil Procedure was applicable, the courts below acted with material irregularity in exercising their jurisdiction. Under Section 7-C a tenant is entitled to deposit rent in respect of accommodation in the tenancy if the landlord refuses to accept rent tendered to him by the tenant. The tenant is entitled to deposit the rent in the court of Munsif having jurisdiction in the area where the accommodation is situate. The court is required to issue notice to the landlord and he is permitted to withdraw the amount on an application made by him. Sub-section (5) lays down that any deposit made under Sub-section (2) shall be held by the court for the benefit of the person who may be entitled to it. Under Sub-section (6), the Legislature has made it clear that where a deposit has been made in accordance with the provisions of Section 7-C, it shall be deemed that the rent has been duly paid by the tenant to the landlord. These provisions dearly show that any deposit made by the tenant in the Munsifs Court is for the benefit of the landlord and the tenant is absolved from his liability of paying rent to the landlord again. Sub-section (6) is a deeming provision under which tenant to deemed to have fully Paid the rent to the landlord. If deposit Is made by the tenant in accordance with the provisions contained Section 7-C of the Act he is absolved of his liability to pay rent again to the landlord in any other proceedings as the deposits are made for the benefit of the landlord and it is always open to the landlord to withdraw the same See Mohammad Bashir v. Azizul Qadar : AIR 1967 All 1 [LQ/AllHC/1966/15 ;] ">1967 All 1 [LQ/AllHC/1966/15 ;] [LQ/AllHC/1966/15 ;] ">1967 All 1 [LQ/AllHC/1966/15 ;] ">1967 All 1 [LQ/AllHC/1966/15 ;] [LQ/AllHC/1966/15 ;] [LQ/AllHC/1966/15 ;] and Brahmanand v. Kaushalya Devi : AIR 1977 SC 1198 [LQ/SC/1977/172] .

8. The District Judge committed patent error in holding that on the enforcement of the U.P. Act No. XIII of 1972, any proceedings under Section 7-C could not continue and the Defendant could not deposit the rent in those proceedings. Section 43(2)(e) of the U.P. Act No. XIII of 1972 provides that notwithstanding the repeal of 1947 Act, any proceedings pending immediately before the commencement of the Act, in the court of Munsif under Section 7-C of the Old Act (1947 Act), shall be continued and concluded as if 1972 Act had not been passed. This provision creates a legal fiction under which proceedings under Section 7-C are permitted to be continued and the 1972 Act shall not apply as the old Act continues to remain in force for the purposes of Section 7-C. Deeming provision made by the Legislature must be given full effect by courts to carry out legislative intent. In the instant case, proceedings under Section 7-C were pending when the 1972 Act came into force, those proceedings could continue and conclude in the manner provided under the 1947 Act and the U.P. Act No. XIII of 1972 was not applicable to those proceedings, the deposits made by the Defendant in proceedings under Section 7-C were saved and he could not be held defaulter.

9. In the result, I allow the revision and set aside the order of the courts below striking off the applicants defence. The trial court is directed to proceed with the trial of the suit on merits Parties shall bear their own costs.