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2011 DIGILAW 2830 (ALL)

Ram Pyare v. Kamla Devi and Others

2011-12-13

PRAKASH KRISHNA

body2011
Hon'ble Prakash Krishna, J.: - This is a revision under section 25 of Provincial Small Cause Courts Act against the judgment and decree dated 30th of September, 2011 passed by the Additional District Judge, Court No.11, Kanpur Nagar, in SCC Suit No.63 of 2005 whereby the suit for recovery of arrears of rent, taxes and ejectment of the applicant has been decreed. The applicant is a tenant whose tenancy was terminated by means of a notice on the ground that he is defaulter in payment of rent. The suit was filed for recovery of arrears of rent, damages and ejectment. During the pendency of the suit, the defendant tenant failed to comply with the provisions of Order 15 Rule 5 C.P.C. as amended in the State of U.P. and therefore his defence was struck off by the order dated 18th of February, 2011. The said order was challenged by way of revision No.165 of 2011 before this Court which was dismissed on 15th of April, 2011 and the delay in making the deposit was not condoned. The learned counsel for the applicant in support of the present revision submits that the suit was premature. Elaborating the argument, it was submitted that notice terminating the tenancy was given by two modes; one by registered post and the other by under postal certificate (UPC). Notice by registered post was served on 29.7.2005. The notice sent under postal certificate according to the defendant tenant was served on 30.7.2005. Suit giving rise to the present revision was instituted on 29th of August, 2005. The contention is that if the period of 30 days is reckoned from 30.7.2005, the suit was instituted within thirty days and as such it was premature. The learned counsel for the applicant also urged that there was no default in payment of rent or defendant tenant was not liable to pay taxes etc.. In reply, Sri Atul Dayal, appearing on behalf of opposite party (caveator) submits that in view of the fact that the defence has been struck off by trial Court and that order has been confirmed by this Court, the defendant tenant could raise only such plea which was available on record and he could point out defect in suit or in notice and he cannot be permitted to raise any plea in defence, in absence of any written statement. He, therefore, submits that so far as the finding recorded by the Court below with regard to the default and recovery of arrears of rent etc. is concerned, the defendant tenant cannot take any defence in this regard. Considered the respective submissions of the learned counsel for the parties and perused the record. It is not in dispute that notice terminating the tenancy is dated 26th of July, 2005. It is also not in dispute that the notice was sent by registered post as well as under postal certificate. The notice sent through registered post was served on the applicant on 29.7.2005. To this extent there is no dispute. However, the learned counsel for the applicant submits that the notice sent under postal certificate was served on 30th of July, 2005. The case of the plaintiff landlord was that it was served on 27th of July, 2005 which has not been accepted by the trial Court as there is some overwriting etc.. Taking the case of the defendant tenant that registered notice was served on 29th of July, 2005, it is difficult to hold that the suit is not maintainable or premature. Admittedly, the notice sent through registered post was served on 29th of July, 2005 and the suit was filed on 29.8.2005. The month of July is of 31 days and the suit was obviously instituted after expiry of 30 days. Reliance placed by the learned counsel for the applicant upon Smt. Priya Bala Ghosh and others Vs. Bajrang Lal Singhania and others, AIR 1992 SC 939, paragraph 4 in particular is misplaced one in view of the fact that defence of the applicant has been struck off. So far as the plea that defendant tenant has sent the rent through money order or is not liable to pay taxes etc. are concerned, in view of the fact that the defence of the tenant has been struck off, he cannot be permitted to put forward all these pleas which are the pleas in defence in absence of written statement. I do not find any error in the order of the Court below. There is no merit in the revision. The revision is dismissed. The learned counsel for the applicant also informs the Court that a review application has also been filed in civil revision no.165 of 2011 which is pending. I do not find any error in the order of the Court below. There is no merit in the revision. The revision is dismissed. The learned counsel for the applicant also informs the Court that a review application has also been filed in civil revision no.165 of 2011 which is pending. Be that as it may, since the revision was finally disposed of, the pendency of the review application is not at all relevant. Before parting with the case it may be noted that Sri Atul Dayal, learned counsel appearing on behalf of the plaintiff landlord submits that the applicant tenant has not deposited any rent during the pendency of the suit and he does not deserve any sympathy of the Court. However, the learned counsel for the applicant disputes it. At the end, the learned counsel for the applicant prayed that some reasonable time to vacate the disputed shop may be granted to which the learned counsel for the plaintiff opposite party has no objection. The applicant tenant is granted time to vacate the disputed premises on or before 31st of May, 2012 subject to the filing of an undertaking on affidavit within a period of one month before the trial Court that he will handover peaceful vacant possession of the disputed accommodation to the landlord on or before that date. Within the aforesaid period the applicant tenant is also required to deposit the entire arrears of rent and damages after adjusting the amount, if any, already deposited for the period upto 31st of May, 2012 before the trial Court. In case of default in compliance of any of the conditions stipulated above within the stipulated time, the time granted by this Court shall stand vacated. The revision is dismissed.