MADAN MOHAN BAJPAYEE Vs. HARNAM DAS GUPTA

JUDGEMENT

(1.) This writ petition under Article 226 of the Constitution of India has been filed by the plaintiff-petitioner challenging the judgment and decree passed by the trial court dated 18.5.2002 in Suit No. 72 of 1986 and the order passed by the revisional court dated 25.11.2002 in Revision No. 17 of 2002. The petitioner further prays for quashing of the order dated 30.1.2003 passed by the executing court for issuing Parvana Dhakal fixing 13.3.2003.

(2.) The facts leading to filing of the present writ petition are as under : That the petitioner who is the tenant of the accommodation in dispute namely house No. 57, Mohalla-Katghar, district Bareilly on monthly rent of Rs. 40 since 1969 as alleged in the writ petition. That with the coming into force of U. P. Act No. 13 of 1972, the rent was enhanced by 25 per cent and petitioner started paying rent at the rate of Rs. 50 per month including water tax as agreed rent. The petitioner further asserts that with effect from 1.1.1980 the rent was enhanced to Rs. 100 per month to which the petitioner agreed and started paying the same including water tax. The petitioner asserted that with effect from 1.4.1985, the rent was again enhanced to Rs. 150 per month which was paid till 31st December, 1985. It is only when the petitioner received some legal advice, he stopped paying rent since 1.1.1986 and informed the then landlady that the excess payment which was made by the petitioner at the rate of Rs. 50 per month from 1.4.1985 till 31.12.1985, i.e., Rs. 450 may be adjusted towards rent since 1.1.1986 at the rate of Rs. 100 per month. The landlady gave a notice determining the tenancy of the petitioner on account of petitioner being in default in payment of rent. The said notice dated 2.5.1986 was served on the petitioner, to which petitioner submitted reply on 15.5.1986 denying the allegations made in the notice that the landlord filed a suit, being Suit No. 72 of 1986 in the court of Judge, Small Causes for ejectment of the petitioner-tenant from the accommodation in dispute and for decree for a sum of Rs. 1,800 being arrears of rent and mesne profit and water-tax. The petitioner filed a written statement contesting the suit. It so happened that on 29.4.2002 an adjournment application was moved on behalf of the petitioner-defendant in the suit that the petitioner who is 71 years old and is a heart patient and is admitted in Balrampur Hospital, Lucknow, therefore, the case be adjourned on medical grounds. On the aforesaid application, the Court adjourned hearing to the next date, i.e., 30.4.2002, on payment of cost of Rs. 100. Since the petitioner was lying in hospital at Lucknow due to his ailment it was impossible for the petitioner to attend the Court at Bareilly on 30.4.2002. The application was moved on 30.4.2002 when the case was taken up, as per medical advice to the petitioner an adjournment for four weeks, was prayed for. This application was opposed by the plaintiff respondent and a request was made on behalf of the plaintiff that the Court may proceed under Order XVII, Rule 3 of the Code of Civil Procedure. On the aforesaid adjournment application the Court was pleased to adjourn the case with the observation that no further opportunity of evidence shall be granted to the petitioner and fixed 14.5.2002 as next date in the suit. On 14.5.2002, it so happened that the counsel for the petitioner Sri Rajiv Mishra was away from Bareilly and gone to Allahabad in connection with some work, he therefore, gave application to his junior to file the same on the next date fixed, i.e. 14.5.2002, that any date may be fixed after 17.5.2002, as learned Counsel for the petitioner was out of station. On the aforesaid application which is opposed by learned Counsel for the plaintiff the Court has been pleased to pass an order to proceed ex-parte under Order XVII, Rule 3 of the Code of Civil Procedure and fixed 18.5.2002, as the date for judgment. The trial court treated this application as an application on behalf of the petitioner. On 18.5.2002, an application alongwith affidavit was moved by the petitioner at 10.00 a.m. before the trial court for recalling the order dated 18.5.2002, but the Court did not entertain the application on the ground that the judgment has already been dictated. Later on the Court pronounced the judgment on 18.5.2002 and decreed the suit of the plaintiff for arrears of rent as well as water-tax and mesne profit. Aggrieved thereby the petitioner preferred a revision under Section 25 of the Provincial Small Cause Courts Act, 1887. The revisional court directed the stay of the decree subject to petitioner's furnishing security for decretal amount. The execution application was filed by the defendant before the executing court. The petitioner filed an application for time to file security but the request of the petitioner was rejected and parvana dakhal was issued on 27.8.2002. On 25.11.2002, the revisional court dismissed the revision and maintained the decree passed by the trial court. Thus, this writ petition.

(3.) Before this Court learned Counsel for the petitioner submitted that in the facts and circumstances of the case, the trial court has erred in proceeding under Order XVII, Rule 3 of the Code of Civil Procedure and relied upon a Full Bench decision of this Court comprising of five Judges in M. S. Khalsa v. Chiranji Lal and Ors., AIR 1976 All 290, wherein the Full Bench in para 69 has held as under: