Abdul Wahid vs Additional District Judge,Bijnor & Ors.

S.U. Khan, J.—This is tenant''s writ petition directed against order passed by Additional District Judge in revision striking off his defence. JSCC/Munsif Nagina in Suit (SCC Suit No. 57 of 1981) had refused to strike off the defence of petitioner tenant by order dated 1891982. Landlord respondent filed revision against the said order being Civil Revision No. 291 of 1982 which was connected with Civil Revision No. 292 of 1982. Civil Revision No. 292 of 1982 was dismissed while Civil Revision No. 291 of 1982 was allowed.

Lala Radhey Lal original landlord respondent No. 3 (since deceased and survived by legal representatives) filed two suits against Abdul Aziz and Abdul Wahid father and son. Abdul Aziz died during the pendency of revision leaving behind the other tenant Abdul Wahid his son as his only legal representative. Abdul Wahid filed the instant writ petition and he also died during pendency of the writ petition and was survived by legal representatives. Radhey Lal had filed two suits against Abdul Aziz and Abdul Wahid, the tenants regarding the same tenanted accommodation. In suit No. 57 of 1981, eviction was sought from the shop in dispute alongwith recovery of arrears of rent while in suit No. 58 of 1981 decree for arrears of rent of different period was sought. Both the suit were consolidated. Application for striking off the defence had been filed in suit No. 58 of 1981 before consolidation of both the suits. The said suit relates to only recovery of arrears of rent hence provision of striking off the defence is not applicable to the said suit. The Revisional Court after noting the aforesaid facts held that after order of consolidation of both the suits, application for striking off the defence could be treated to have been filed in suit No. 57 of 1981, which contained the prayer for eviction also. The Revisional Court in the alternative held that defence could be struck off even without any application.

The Trial Court dismissed the application on the ground that rent had been deposited in a case under Section 30 of U.P. Act No. 13 of 1972. Defendants had also filed application for condonation of any delay in the deposit.

The Revisional Court after giving the entire details of the deposits made under Section 30 held that after receiving notice of demand tenants were not authorized to deposit the rent under Section 30 of the Act. 20111981 was the date fixed in the suit. On 20111981 defendants sought adjournment for filing written statement which was granted. The Revisional Court treated the said date to be the date of first hearing. In view of Supreme Court authority reported in A.I.R. 2002 S.C. 995, the said date cannot be taken to be the date of first hearing. Unless written statement is filed, Court cannot apply its mind to the controversy. No date until filing of the written statement, which is taken on record by the Court, can be said to be the date of first hearing.

The Revisional Court is right in holding that after receiving notice of demand tenant is not entitled to deposit the rent under Section 30 of the Act.

However, as held by the Supreme Court in B.C. Jain v. Y. Agarwal, AIR 1981 SC 1657, the power to strike off the defence is discretionary. Trial Court had exercised the discretion in favour of the tenants. In revision normally such discretion cannot be interfered with. Even otherwise the proper course for Revisional Court was to remand the matter to the Trial Court and not to strike off the defence by itself. From the records, it is not clear as to what was legally the first date of hearing the date on which written statement was brought on record and Court could apply its mind).

There was also no application of the landlord for striking off the defence in suit No. 57 of 1981. The application was filed in the other suit i.e. 58 of 1981. Civil Revision No. 292 of 1982 was filed by the landlord in suit No. 58 of 1981 and the said revisions was dismissed.

By virtue of interim order passed in this writ petition dated 1011984 further proceedings of suit have been stayed. The suits are of 1981.

In view of the above facts it will not be in the interest of justice to remand the matter to Trial Court for reconsideration of the question of striking off the defence. Interest of justice may be served by issuing certain directions.

Accordingly, writ petition is allowed. Judgment and order passed by the Revisional Court dated 1491983 striking off the defence of tenantspetitioners in SCC Suit No. 57 of 1981, is set aside.

Trial Court is directed to decide the suits positively within three months from the date of production of certified copy of this order.

As against the admitted rent of Rs. 40 per month, the tenantspetitioners are directed to pay rent to the landlordrespondent with effect from July 2004 onwards at the rate of Rs. 400 per month. (It has been held by me in Civil Misc. Writ Petition No. 29438 of 2001 decided on 2342004 that while granting relief to the tenant writ Court can enhance the rent to some reasonable extent).

For deciding the question of benefit of Section 20(4) of the Act deposits made by the tenant under Section 30 of the Act on or after 1121981, shall not be taken into consideration.