AHMAD NATTHOO SUBEDAR SUMER Vs. III ADDL DISTRICT JUDGE JUDGE SMALL CAUSE COURT MUNSIF AND SHANTI DEVI

JUDGEMENT

(1.) This is tenants' writ petition. Landlady-respondent No. 3 Smt. Shanti Devi filed SCC suit No. 47 of 1984 against the tenants-petitioners before JSCC/Munsif, Shahjahanpur. The suit was filed for eviction on the ground of default. In the said suit an application for striking off the defence of tenants-petitioners was filed on the ground that they had not deposited the entire arrears of rent admitted by them on the first date of hearing. The said application of the landlady was allowed ex-parte on 24.4.1986, as on that date tenant-petitioners had not appeared. Through the said order defence of the defendant-petitioner was struck off. Thereafter plaintiff's evidence was recorded, evidence was closed, arguments were heard and 28.4.1986 was fixed for judgment. On 28.4.1986 the trial Court found that landlady-plaintiff failed to prove her case inspite of the fact that suit proceeded ex-parte. Suit was therefore dismissed through judgment and decree dated 28.4.1986. Against the said judgment and decree plaintiff-respondent Smt. Shanti Devi filed SCC Civil revision No. 73 of 1987. The revisional Court held that plaintiff had filed an application for amendment of the plaint seeking an amendment to the effect that rent was due from 4.5.1981 and not from 4.5.1984 and as the trial Court had not disposed of that application hence judgment and decree of the trial Court through which suit was dismissed was erroneous. Accordingly revision was allowed by District Judge, Shahjahanpur on 5.5.1988 judgment and decree dated 28.4.1988 was set aside and suit was remanded. After remand the trial Court by order dated 13.1.1989 allowed the amendment application of the plaintiff. Thereafter, tenant-defendant filed an application for permission to file written statement. The trial Court through judgment and order dated 20.1.1990 rejected the application of the tenants and refused to permit them to file written statement. Against the said order petitioners filed SCC revision No. 17 of 1990. IIIrd A.D.J. Shahjahanpur through judgment and order dated 5.9.1990 rejected the revision hence this writ petition.

(2.) The revisional Court wrongly held that on 28.4.1986 suit was dismissed in default. On 28.4.1986 suit was dismissed on merit. Both the Courts below mainly placing reliance upon Mohd. Ali v. Indar Lal 1983 (2) A.R.C. 353 held that as order dated 24.4.1986 (which had been passed before the suit was dismissed) was not challenged by the tenants in revision hence they could not question its validity and as by the said order their defence had been struck off hence they could not be permitted to file written statement.

(3.) In my opinion the view of the Courts below is erroneous in law. When suit was earlier dismissed on 28.4.1986 on merit all the interim orders passed in the suit merged in the final judgment. After setting aside of the said judgment and remand by the revisional Court every thing was open again. First date of hearing has to be decided after remand. Through amendment in the plaint the entire question of default assumed new significance as fresh date since when according to the plaintiff rent had not been paid was given. Even otherwise after amendment in the plaint it was essential to provide opportunity to file additional written statement to the tenants. In any case unless written statement is filed question of striking off the defence for not depositing the entire rent on the first date of hearing does not arise as without perusal of written statement it cannot be ascertained as to whether defendants have admitted any rent due or not. Defendants could not challenge the order of 24.8.1984 as just after four days i.e. on 28.8.1986 suit itself had been dismissed.