BALA DEVI Vs. IIIRD-ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) RESPONDENT No. 3 Brij Kishore is the landlord of a shop which was let out to Jagdish Prasad, respondent No. 4, and Jyoti Prasad, who was the father of the petitioner and respondent No. 5, Jyoti Prasad died and the tenancy in so far as he is concerned devolved upon the petitioner and respondent No. 5. A notice dated March 13, 1978, under Section 106 of the Transfer of Property Act was served by respondent No. 3 on the petitioner and respondents 4 and 5 terminating their tenancy. It was also stated in the said notice that the shop in question had been constructed in the year 1975 and consequently the provisions of U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) were not applicable to it. A copy of this notice has been attached as Annexure CA-1 to the counter-affidavit filed in the present writ petition. The petitioner sent a reply to that notice on June 1, 1978 a copy whereof has been filed as Annexure CA-2 to the counter-affidavit. She stated that she had nothing to do either with the tenancy of the shop in question or the business carried on therein and was, therefore, not liable either to pay the alleged arrears of rent or to vacate the shop in question which was never been in her possession. She also stated therein that she was residing at Panipat and the notice had been served unnecessarily upon her. Subsequently respondent No. 3 instituted a suit for ejectment of the petitioner and respondents 4 and 5 from the shop in question and for recovery of arrears of rent etc. The petitioner was apparently impleaded as one of the defendants in the said suit because on the death of Jyoti Prasad his tenancy rights had devolved not only on respondent No. 5 but on the petitioner also. Summons of the suit were sent to the petitioner both in the ordinary course and by registered post and the report of the process server as well as the postman was that the petitioner had refused to accept the summons. On the basis of this report the service of the summons on the petitioner was held to be sufficient. Since the petitioner did not put in appearance even after service of summons on her, the suit was ordered on November 24, 1978 to proceed ex-parte against her. Respondent 4 and 5 contested the suit by finding a written statement. However, for non-compliance of the requirements of Order 15, Rule 5, C.P.C. their defence was struck off.

(2.) IT is only after the defence of respondents 4 and 6 was struck off that the petitioner made an application for setting aside the aforesaid order dated November 24, 1978. This application was dismissed by the Judge, Small Causes, on August 7, 1981 on the finding that no sufficient cause had been made out for setting aside the said order. The petitioner preferred a revision against the order dated August 7, 1981 before the District Judge which was transferred to the Court of the 3rd Additional District Judge Ghaziabad, respondent No. 1 April 13, 1982, was the date fixed for hearing in the revision. On that date, however, no appeared on behalf of the petitioner and after hearing counsel for the landlord respondent the revision was dismissed by respondent No. 1 on merits. Subsequently an application was made on behalf of the petitioner for setting aside the order dated April 13, 1982 on the ground that the said order had been passed ex parte. The reason given for non-appearance on April 13, 1982 by the petitioner was that she was lying ill on that date. This application was dismissed on May 21, 1982. The view that the District Judge seems to have taken in this order is that since the revision had been dismissed on merits as application for setting aside that order was not maintainable. Aggrieved the petitioner had instituted this writ petitioner with the prayer to quash the order dated August 7, 1981, passed by the Judge, Small Causes and order dated April 13, 1982, and May 21, 1982, passed by respondent No. 1.

(3.) FOR the respondent No. 3 it has been urged by his counsel that in view of the specific assertion made by the petitioner in her reply to the notice given under Section 106 of the Transfer of Property Act the petitioner had no locus standi and the application which was made by her for setting aside the order dated November 24, 1978, directing the suit to proceed ex parte against her was apparently made to delay the disposal of the suit as long as possible. According to counsel for respondent No. 3 his submission in this behalf was borne out from the circumstances that the said application was made only after the defence of respondent 4 and 5 had been struck off for non-compliance of the requirements of Order 15, Rule 16, C.P.C. It appears that along with the application for setting aside the order dated November 24, 1978, the petitioner had also filed her written statement which she wanted to be accepted after setting aside the order dated November 24, 1978. In paragraph 18 of the counter-affidavit the contends of paragraph 15 of the written statement proposed to be filed by the petitioner have been quoted. Its perusal indicates that in the paragraph of her written statement she had reiterated the stand taken by her in her reply of the notice under Section 106 of the Transfer of Property Act. She had stated that after the death of her father Jyoti Prasad about four years back she had already told respondent No. 3 that she had no concern with the tenancy of the shop in question. She had further stated therein that after the death of her father rent was all along paid to respondent No. 3 by respondent 4 and 5 and that the suit was not maintainable as against her either for ejectment or for recovery of arrears of rent. From the stand taken by the petitioner in her reply to the notice under Section 106 of the Transfer of Property Act as well as in paragraph 15 of the written statement proposed to be filed by her it is apparent that the petition has no concern with the tenancy of the shop in question and appears to have been impleaded only because on the death of Jyoti Prasad the tenancy devolved on her also.