LAXMI DEVI Vs. CHANDRAMANI DEVI

JUDGEMENT

(1.) THIS is a defend ant tenant's appeal from a decree of her eviction from a house, for recovery of arrears and damages.

(2.) IT appears that the father of the defendant appellant in 1938 took on lease the premises in suit, commonly described as Garden House, situate in a decent locality of Varanasi City, from the father of the plaintiff respondent at a monthly rent of Rs. 75/ - for residential purposes. In course of time the father of the plaintiff as well as of the defend ant died. The plaintiff as the heir be came the owner of the premises in suit and the defendant as heir of her father succeeded to the tenancy. In due course the rent was increased to Rs. 125/ - per month. The plaintiff was married to a gentleman who was residing outside Varanasi with the family being in ser vice. When the plaintiff's husband retir ed from service the fa_mily came back to Varanasi and the plaintiff was desirous of securing' residence in her own pro perty, that is, the Garden House, the premises in suit. She made an applica tion under Section 3 of U. P. Act 3 of 1947 before the Rent Control and Evic tion Officer for grant of permission to bring a suit for eviction of the defend ant tenant. This application was op posed on behalf of the defendant appel lant. The Rent Control and Eviction Officer after hearing the -parties granted the necessary permission. This order was confirmed in revision by the Com missioner and as well as by the State Government under Section 7 -F of the said Act. The plaintiff then by a notice under Section 106 of the Transfer of Property Act dated 19 -5 - 1965 terminat ed the tenancy of the defendant and asked her to vacate the premises on the expiry of thirty days from the receipt thereof. The defendant gave a reply to the notice raising certain objections and did not vacate the premises. The plain tiff then instituted the suit giving rise to this appeal. The main cause of action pleaded was the termination of the ten ancy by a notice and the refusal of the defendant to deliver vacant possession of the premises in suit to the plaintiff. Besides claiming the arrears of rent at the rate of Rs. 125/ - per month the plaintiff claimed damages at the rate of Rs. 250/ - per month.

(3.) IT is unfortunate that the order sheet of the court of the learned Munsif of Varanasi, where the suit was institut ed, shows that the court allowed a large number of adjournments, some of which appeared to be mere indulgences to the defendant, thus prolonging the pendency of the suit. The suit was registered on 21 -7 -1965. The written statement was filed on 25 -1 -1966 and issues framed on 1 -2 -1966. Then on two consecutive dates fixed the suit was adjourned at the in stance of the defendant. The final hear ing of the suit was adjourned at the in stance of the defendant on ground of illness. On 12 -5 -1966, the adjourned date fixed for final hearing, an applica tion No. 44 -C was moved by the defend ant for amendment of the written statement. By this application the defendant applied for correcting certain typogra phical errors, to add some more pleas in support of the main plea as to the in validity of the permission and a plea to the effect that the tenancy from the very inception was for manufacturing pur poses and the notice of termination not having afforded six months to vacate as required by law, was bad in law. This was the substance of the amendment sought. The learned Munsif by his order dated 13 -5 -1966 after hearing the par ties partly allowed the application. The typographical errors were allowed to be corrected. Pleas were added on the question of the invalidity of the permis sion but the application stood rejected for adding a plea that the tenancy was for manufacturing purposes as in the opinion of the learned Munsif that would have changed the nature of the case. On 2 -6 -1966 an application for review of the said order by the defendant was filed. This was rejected on 12 -7 -1966. Then on 19 -7 -1966 the defendant filed another application for amendment of her written statement, 54 -C, praying for the incorporation of the same plea, though put in a slightly different form that the tenancy was a manufacturing one, as raised on the earlier application together with some more pleas in res pect of the invalidity of the permission. By an order dated 23 -9 -1966 the learned Munsif partly allowed the said applica tion incorporating the further amend ments in respect of the plea of invali dity of permission and rejecting the am endment sought for the plea that the lease was for manufacturing purposes, The defendant then went up in revision to the High Court against the rejection of her prayer for amending her written statement by adding a plea to the effect that the lease was for manufacturing purposes and the notice of termination was not in accordance with law. Her revision application was rejected by the High Court on 15 -11 -1966 on the ground that there was no jurisdictional error in the order of the court below. It appears that the proceedings in the suit remained stayed for sometime, may be because of the pendency of the revision in the High Court. The order sheet then shows that on numerous dates fixed for final hear ing the hearing was adjourned at the instance of the defendant on ground of illness. Some of the adjournments were, no doubt, due to the court being busy with other work. Then on 3 -10 -1968 the defendant filed another application for the amend ment of her written statement, 119 -C, but in this application no plea was sought to be introduced regarding the lease being for manufacturing purposes. The amendment sought in this applica tion was confined only to the invalidity of the permission. This application was allowed on 28 -10 -1968 with the result that further issues were framed and the hearing was adjourned on 24 -3 -1969. to a long date. Then on 29 -9 -1969 when the case was called up the defendant filed an ap plication 130 -C for amendment of the written statement repeating the same prayer as the one made in the very first application No. 44 -C for adding a olea to the effect that the tenancy was for manufacturing purposes from the very inception and the notice of termination was insufficient and invalid. 30 -9 -1969 was the date fixed in the suit for final hearing. When the suit was called up for hearing on that date Sri R. P. Singh, learned counsel for the defendant, ap peared and pressed the application 130 -C. After hearing the objection of the plain tiff the learned Munsif rejected the ap plication and proceeded with the hear ing of the suit. The plaintiff's witnesses were examined. In the course of the hearing Srf R. P. Singh, learned counsel for the defendant, moved another application 132 -C praying for adjournment of the hearing to enable the defendant to ap proach the High Court in revision against the order rejecting the application for amendment and obtaining stay order. This application was also re jected the same day by the learned Munsif who proceeded with the examina tion of the plaintiff's witnesses. The plaintiff closed his evidence. Neither the defendant nor his counsel seemed to have taken any further part in the proceed ing. The English notes of the learned Munsif showed that the defendant's counsel did not produce any evidence. The learned Munsif further recorded that since the defendant's counsel had appeared in the case at the outset it was proposed to dispose of the case on merits, there being sufficient evidence on the record to decide the case on merits. Arguments then were heard obviously of the plaintiff's counsel and 4 -10 -1969 was fixed for pronouncing judgment. No attempt seems to have been made on behalf of the defendant between 30th September 1969 to 4 -10 -1969 for being afforded an opportunity to be heard. On 4 -10 -1969 judgment was pronounced decreeing the plaintiffs suit for eviction, recovery of arrears at the rate of Rs. 125/ - per month and mesne' profits for wrongful use and occupation at the rate of Rs. 250/ - per month. Against the above judgment and decree of the learn ed Munsif the defendant resorted to two fold procedure. She filed an application purporting to be under O. 9, R. 13, Civil P. C. in the court of Munsif for setting aside the decree and as well as a sub stantive appeal from the judgment and decree of the learned Munsif. Her ap plication filed under O. 9, R. 13. Civil P. C. was rejected mainly for the reason that she had already preferred an appeal from the judgment and decree of the trial court.