SURENDRA MALIK Vs. DISTRICT JUDGE

JUDGEMENT

(1.) Heard Sri S.N. Verma, senior advocate, assisted by Sri Sharad Malviya, counsel for the petitioner and Sri K.M. Ashthana for the contesting respondent.

(2.) The facts of the case is that the respondent No. 3 landlord filed S.C.C. Suit No. 74 of 2000 for ejectment of the petitioner from the disputed shop. A written statement was filed by the petitioner denying plaint allegations and also that the building in question is 60 years old, as such it is governed by the provisions of U.P. Act No. XIII of 1972. The respondent No. 3 filed an affidavit as statement in chief with an application that the defendant-petitioner be directed to cross-examine the plaintiff. On 27.7.2000 an application was moved by the landlord-respondent praying that the application C-33 which was filed by way of examination-in-chief may be dismissed as not pressed. The Judge Small Cause Courts vide order dated 28.7.2004, dismissed the said application as not pressed. The petitioner-tenant moved an application praying that the suit may be dismissed for want of any evidence as the affidavit which was by way of evidence (examination-in-chief) has been dismissed. The said application of the petitioner was rejected by the Judge Small Cause Courts on 25.8.2004. While rejecting the application 38-Ga the Judge Small Cause Courts made an observation that despite the affidavit being dismissed as not pressed, still the landlord will not be precluded from adducing oral evidence. The Court allowed the landlord to adduce oral evidence. The petitioner filed a revision under Section 25 of the Provincial Small Cause Courts Act against the order dated 25.8.2004. The revisional court allowed the revision vide judgment and order dated 5.10.2004 setting aside the order of the Judge Small Cause Court so far it rejected the application paper C-33 as well as the affidavit paper C-34 as well as part of the order whereby the plaintiff was permitted to prove his case by oral evidence. However, the revisional court directed that the affidavit paper No. C-34 shall remain on record as examination-in-chief of the plaintiff and the Judge Small Cause Court shall deal with it in accordance with requirement of Sub-rule (2) of the Rule 4 and Rule 13 of the Order XVIII, C.P.C.

(3.) The submission on behalf of the counsel for the petitioner is that the landlord-contesting respondent had not preferred any revision or had filed any objection with a prayer that the said paper No. C-34 be treated as examination-in-chief. In the circumstances, the revisional court committed an error of law. Reliance has been placed on a decision of the Apex Court in the case of Khushro S. Gandhi and Ors. v. A.N. Guzder, AIR 1970 SC 1468 para 9.