K.B. Asthana, J. - (1.) THIS application in revision is directed against an order passed in an appeal by the learned Addl. Civil Judge of Dehradun allowing the Plaintiff Appellant to withdraw the suit with permission to file a fresh suit.
(2.) IT appears that the Plaintiff and the Defendant are landlord and tenant respectively. The Plaintiff after terminating the tenancy of the Defendant brought a suit in the court of the Munsif of Dehradun for ejectment of the Defendant and for recovery of arrears of rent and damages. In the plaint the Plaintiff had made an averment that the accommodation let out to the Defendant was constructed by him in the year 54, therefore the suit was not barred by the provisions of the UP (Temp.) Control of Rent and Eviction Act. The defence inter alia was t lat the accommodation in question was a pre 1951 construction and the suit was barred by the provisions of the Rent Control Act. Amongst others a plea was also raised that the notice of termination of the tenancy was not valid. The main controversy in the suit before the learned Munsif was one of fact whether the accommodation in question was a pre -1951 construction or a post 1951 construction. The Munsif appears to have inspected the locality and recorded his impressions. Inter alia the learned Munsif recorded that at the spot the learned Counsel for the Defendant had pointed out the extent of the accommodation let out which appeared to be more than what the Plaintiff claimed in the plaint as having been let out. However, on the evidence on record the learned Munsif found that the accommodation in question was pre -1951 and dismissed the suit of the Plaintiff. On appeal the Plaintiff applied for permission to file additional evidence. He was given ample opportunity to do so. Some survey maps were brought on the record, it appears, at the instance of the Defendant during the trial. Apparently the Plaintiff wanted to adduce additional evidence to show that the accommodation in question was post -1951 construction. The Plaintiff filed certain maps. Then an application was made by the Plaintiff on 1 -4 -1968 praying that the learned court may be pleased to allow the Plaintiff to withdraw the suit with permission to institute a fresh suit. The grounds mentioned in the application, which is paper No. 39 A 1 on record are general and vague. There is, however, this averment in that application: "The Defendant has also made encroachments and it is just and proper that the whole matter be agitated and decided together instead of being agitated and decided piecemeal to avoid the objection of Order 2 Rule 2, Code of Civil Procedure." This application is not verified by the Plaintiff. It is not supported by any affidavit. An objection was filed by the Defendant to this application controverting the allegations made, the defence case always being that he was a tenant of whatever accommodation was in his possession and was not a trespasser of any part thereof.
(3.) THE learned Civil Judge in allowing the Plaintiff's application seems to have been very much influenced by the circumstance that the Defendant had introduced unnecessary and great complication by producing many maps without full evidence and thus creating confusion and by the circumstance that the Defendant had also made encroachments, for which the learned Judge relied upon the inspection note of the learned Munsif which I have referred to above, in which it was observed that the Defendant's counsel had pointed out at the spot the area under the possession of the Defendant as tenant which appeared to be more than what the Plaintiff claimed to be the tenanted premises.;