RADHA RAMAN PANDEY Vs. JAGAT MOHAN

JUDGEMENT

(1.) KRISHNA Murari, J. Heard Sri Vishnu Gupta, learned counsel for the petitioner.

(2.) THE facts giving rise to the present dispute are as under: Respondent-landlord filed S. C. C. Suit No. 18 of 1996 seeking eviction of the petitioner/tenant. THE suit was filed mainly on two grounds; arrears of rent and material alteration done by the petitioner-tenant which disfigured the building. During the pendency of the proceedings, the petitioner-tenant moved an application claiming benefit of Section 20 (4) of U. P. Act. No. 13 of 1972 (for short the 'act') on the ground that he has already deposited the entire amount of rent etc. as claimed before the first date of hearing of the suit and as such he be relieved of the decree of eviction. THE Judge, Small Causes Court vide order dated 20-10-2004 held that since the eviction has also been sought on the ground of material alteration in the building resulting in its disfigurement and as such the tenant cannot be relieved from the decree of eviction. THE other objection raised by the tenant-petitioner that respondent-landlord has failed to give details and particulars of the alleged illegal construction in paragraph 7 of the plaint as such the plaint was liable to be rejected, was also not accepted by the Judge Small Causes Court and it was held that issue shall be decided after evidence. Aggrieved, the petitioner-tenant preferred revision No. 965 of 2004 which was dismissed vide order dated 31-3-2005. From a perusal of the judgment of the revisional Court filed as Annexure 7 to the writ petition, it becomes clear that case set up by tenant- petitioner was since the entire arrears of rent has already been deposited and the material facts and particulars with regard to illegal construction resulting in its disfigurement were missing from the plaint as such the Court below ought to have rejected the plaint exercising power conferred by Order VII Rule 11 C. P. C. and it was wrongly held that the question shall be decided after evidence. THE revisional Court held that question whether any illegal construction has been made which has disfigured the building can only be decided after the evidence is led by the parties. In so far as the question of benefit of Section 20 (4) of Act is concerned, the revisional Court found that it has already been held in the earlier judgment dated 24-1-1998 passed by the revisional Court that in case the tenant-petitioner is able to establish by evidence that he has deposited the entire rent he shall be relieved from the decree of eviction on that ground and the same operates as res judicata between the parties.

(3.) IT has been urged by the learned counsel for the petitioner that Revision No. 965 of 2005 was directed against the order dated 20-10-2004 which only related to the deposit of arrears of rent and the revisional Court travelled beyond the scope of revision and recorded findings on the issue of material alteration in the building. The findings being without jurisdiction cannot operate as res judicata. Reliance in support of the contention has been placed upon the judgment of Hon'ble Apex Court in the case of Shakuntla Devi and Kamla and Ors. , 2005 (2) JCLR 780 (SC) : 2005 (59) ALR 599.