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Prem Raman Goshwami v. 3rd A.D.J. And Others - WRIT - A No. 15359 of 1985 [2005] RD-AH 4601 (21 October 2005)


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Civil Misc. Writ Petition No.15359 of 1985

Prem Raman Goswami Vs. IIIrd A.D.J. and another


This is tenant's writ petition.  Landlord-respondent no.2 Vishpati Pachauri filed SCC suit no.49 of 1982 against tenant-petitioner Prem Raman Goswami since deceased and survived by legal representatives for eviction and recovery of arrears of rent.  In the plaint it was alleged that rate of rent was Rs.12/- per month and tenant had not paid the rent since 12.10.1981. Summons of the suit was served upon the tenant-defendant through refusal.  The service was held to be sufficient by the JSCC/Ist Additional Munsif Mathura.  Thereafter suit was decreed ex-parte on 6.9.1982.  The operative portion of the judgment contains only one line to the effect that plaintiffs suit against defendant is decreed ex-parte with cost.  Thereafter tenant filed restoration application on 16.10.1982 and deposited an amount of Rs.210/- alongwith restoration application in compliance of provisions of Section17 Provincial Small Causes Courts Act.  The trial court allowed the restoration application by a twelve page judgment dated 2.8.1983 (restoration application was registered as Misc. Case No.3 of 1982).  Against order dated 2.8.1983 landlord-respondent filed civil revision no.171 of 1983.  IIIrd A.D.J.,Mathura allowed the revision on 5.10.1985 and rejected the restoration application hence this writ petition.  Revisional court held that tenant had not deposited the mesne profit which were also decreed hence he had not made full compliance of Section 17 PSCC Act.  In this regard the finding of the revisional court is clearly erroneous in law.  Alongwith counter affidavit copy of decree has been filed as Annexure C.A.3.  In the first part of the said copy the amount claimed in the suit is shown as Rs.208/-.  In the second part of the copy of decree the decreetal amount is shown as Rs.64/- and costs decreed are shown as Rs.32.90.  The total amount comes to Rs.96.90 while tenant had deposited Rs.210/-.   In the ex-parte judgment copy of which is Annexure-2 to the writ petition it is mentioned that rate of rent is Rs.12/- per month and tenant has not paid the rent since 12.10.1981.  Suit was decreed ex-parte on 6.9.1982.  From 12.10.1981 till 6.9.1982 the total rent/damages for use and occupation come to Rs.132/- (12x 11).  Date of filing of the suit is not mentioned anywhere in the writ petition or in the annexures.  It appears that when suit was filed total rent due was Rs.64/- hence that was shown in the decree.  Adding the rent due till the date of filing of suit and the damages which accrued since then till passing of the ex-parte decree dated 6.9.1982 the total amount comes to Rs.132/-.  After adding the cost awarded by the decree i.e. Rs.32.90 the total amount comes to Rs.164.90.  Tenant deposited Rs.210/- alongwith his restoration application which was much more than the decreetal amount.  The tenant had therefore fully complied with the provision of Section 17 P.S.C.C. Act.  The contrary view of the revisional court in this regard is clearly erroneous.  

There was only a delay of ten days in filing the restoration application.  The trial court held that tenant had sufficient cause for non-appearance on the date on which suit was decreed for the reason that he had no knowledge.  Trial court also held the restoration application to be within time i.e. within 30 days from the date of knowledge.  These findings were findings of fact which should not have been interfered with by the revisional court  in exercise of powers of revision under Section 25 P.S.C.C. Act.  Moreover it is always desirable to decide the suit on merit unless tenant deliberately avoids appearing in the suit.  Trial court having exercised the discretion and restored the suit, it was not proper for the revisional court to interfere in the exercise of the said decision.

The writ petition is accordingly allowed.  Judgment and order passed by the revisional court is set aside.  Judgment and order passed by the trial court is restored.  Trial court is directed to decide the suit as expeditiously as possible.

I have held in Khursheeda Vs. A.D.J. 2004 (2) A.R.C. 64 that while granting relief against eviction to the tenant in respect of building covered by rent control act writ court is empowered to enhance the rent to a reasonable extent.  The same principle may very well be applied while remanding the matter.  In the instant case property in dispute is a house.  Rent of Rs.12/- per month is virtually as well as actually no rent. Accordingly it is directed that with effect from November 2005 onward tenant-petitioner shall pay rent to the landlord respondent at the rate of Rs.500/- per month.  For the purposes of Order XV Rule 5 C.P.C. and Section 20 (4) of U.P. Act No.13 of 1972 tenant shall be held liable to pay rent or deposit the same at the rate of Rs.500/- per month with effect from November, 2005 onward.  In case suit for eviction and recovery of arrears of rent and mesne profit is decreed then the decree shall include the pendentelite and future damages at the rate of Rs.500/- per month with effect from November, 2005 onward.




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