RAMESHWAR DAYAL Vs. DISTRICT JUDGE ALLAHABAD

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution of India arising out of proceedings for striking out of the defence under Order XV Rule 5, C.P.C. The petitioner is the landlord. Opposite Party No. 2, is the tenant. The property in dispute is house No. 120, Colonelganj, Allahabad. The opposite party No. 2, was a tenant of the premises at the rate of Rs. 35/- per mensem. Suit No. 822 of 1975, was filed by the petitioner in the Court of Judge Small Causes, Allahabad for arrears of rent and ejectment on the basis of default. In the suit the allegation was that the opposite party No. 2 fell in arrears of rent from 24th March, 1975 to 23rd August, 1975 and since he did not pay the amount in spite of notice of demand dated 25-8-1975, he was a defaulter and therefore, liable to ejectment.

(2.) During the pendency of the suit an application was moved by the petitioner that since the opposite party No. 2 had not deposited the arrears of rent his defence be struck off. This application was moved on 15th December, 1976. On 8th January, 1977, objections were filed by the opposite party No. 2 that the defence cannot be struck off on the facts and circumstances of the case. The Court, however, struck off the defence and thereafter decided to proceed with the suit and ultimately on 17th November, 1977, the suit was decreed. The decree dated 17th November, 1977, was challenged by the opposite party No. 2 by means of a revision before the District Judge, Allahabad filed under Section 25 of the Provincial Small Cause Courts Act. The Revisional Court was of the view that the Judge Small Causes Court wrongly struck off the defence and as such the revision was allowed on 12th August, 1978 and the matter was remanded to the Court of Judge Small Causes for decision in accordance with law. The petitioner has, therefore, challenged the judgment of the revisional Court, dated 12th August, 1978 by means of the present petition.

(3.) I have heard Shri S. P. Gupta, senior Advocate appearing on behalf of the petitioner and Shri S. P. Srivastava on behalf of the opposite party No. 2.