SHIV PRASAD Vs. XIITH ADDL DISTRICT JUDGE VARANASI

JUDGEMENT

(1.) The property in dispute is house No. Sa-1/133. Mohalla Pandeypur Khajur City and district Varanasi. The respondent No. 3 alleging him to be the landlord filed suit against the petitioner for eviction and for recovery of arrears of rent being S.C.C. Suit No. 119 of 1983. The eviction was sought on the ground of default in the payment of rent. The suit proceeded under Order XVII, Rule 2, C.P.C. and was decreed on 28.8.1990 by judgment. Annexure-2 to the writ petition by Judge Small Cause Court, Varanasi. Against the judgment the petitioner preferred S.C.C. Revision No. 145 of 1990 under Section 25 of the Provisional Small Cause Courts Act. That revision has been dismissed on 16.3.2001 by Judgment Annexure-1 to the writ petition. The tenant has. therefore, approached this Court invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.

(2.) I have heard Sri Sankatha Rai. learned counsel for the petitioner. Sri Ravi Kant, learned counsel for the respondent No. 3, landlord and the learned standing counsel.

(3.) Learned counsel for the petitioner has raised several points before me in this petition. Firstly, it is contended that the trial court has committed an error in proceeding under Order XVII, Rule 2, C.P.C. The learned counsel has taken me through the order sheet of the case, Annexore SA-1 and the provisions of Order XVII, Rule 2. C.P.C. and contended that it has no application in the present case. That it applies only in the case where a party fails to appear on the adjourned date of hearing. According to the Explanation added in 1976 by amendment if substantial portion of the evidence of any party has already been recorded and such party fails to appear on that date, the Court may proceed under this Rule. It Is contended that according to Rule 3. Rule 2 does not apply in a case where the Rule 3 apply.