CHAMAN LAL SHARMA Vs. 1ST ADDITIONAL DISTRICT JUDGES

JUDGEMENT

(1.) INVOKING the jurisdiction of this Court under Article 226 of the Constitution of India, the petitioner has prayed for the issue of a writ in the nature of certiorari quashing the order dated 14th October, 1988 contained in Annexure 3, by means of which the Additional Judge, Small Causes, Lakhimpur Kheri decreed the suit of the plaintiff for arrears of rent and ejectment, as well as the order dated 23rd February, 1989 passed by Additional District Judge, Kheri dismissing the revision filed by the petitioner against the said order, on the ground that the trial Court committed a manifest error of law by striking off the defence of the petitioner under Order 15, Rule 5, CPC in spite of the fact that no objection to the representation of the petitioner was made. The trial Court totally ignored to consider that the entire arrear of rent was given to the Counsel, who did not deposit the same in Court and hence on account of laches on the part of the Counsel the Court below ought not to have rejected the representation of the petitioner; the Court below relying upon the assessment of the house in question by the Nagar Mahapalika for the year 1982-83 wrongly held that the provisions of U.P. Act No. 13 of 1972 were not applicable and the trial Court wrongly held that the notice under Section 106 of the Transfer of Property act was served upon the petitioner.

(2.) AS far as the first ground is concerned it has to be seen as to whether the Courts below were justified in rejecting the representation of the petitioner to the effect that he had, given the arrears of rent for depositing the same to his Counsel who failed to deposit the same and hence the Court below committed an error apparent on the face of the record in striking out of the defence of the petitioner. Hon'ble Supreme Court in Bimal Chand v. Gopal Agarwal, AIR 1981 SC 1957 : 1981(2) RCR 314, has indicated as under :-

(3.) AS far as the two other grounds regarding the service of notice and the house in question was beyond the purview of U.P. Act No. 13 of 1972 are concerned, the Courts below upon consideration of the evidence on record came to a definite conclusion that the notice was served and the house was constructed in the year 1982. In a writ petition under Article 226 of the Constitution of India the findings of fact recorded by the Courts below cannot be disturbed.