- (1.) ORDER on Restoration Application No. 126180 of 2009
(2.) THIS is an application to recall the order dated 23rd March, 2009, whereby the writ petition was dismissed in default. Shri M.K. Nigam, learned counsel for the respondent has no objection for the restoration of the writ petition but he submits that the writ petition may be heard and disposed of finally as it was dismissed in default on earlier occasions also. Shri R.C. Singh, learned counsel for the petitioner has no objection if the writ petition is heard and disposed of simultaneously with the restoration application. Cause shown is sufficient. The order dated 23rd March, 2009 dismissing the writ petition in default is recalled. The delay in filing the restoration application is condoned. The writ petition is restored to its original number. Order on the Writ Petition Shri Ram Chandraji Asthapit Thakur Dwari Dwarika Sahu instituted Suit No. 42 of 1986 against the petitioner in respect of property described by boundaries at the foot of the plaint on the allegations that the plaintiff landlord is a charitable trust and religious institution and as such the provisions of U.P. Act No. 13 of 1972 are not applicable to the property in question. It was further pleaded that the defendant-tenant is in arrears of rent since long time. His tenancy has been determined by means of notice dated 27th November, 1985. A decree for recovery of arrears of rent, damages and possession was claimed. It was pleaded that the defendant tenant's son has got constructed a house at mohalla Bilandpur, District Gorakhpur. The defendant has also got another house at mauja Padri Gajraj, District Deoria wherein he is actually residing. The tenant is not residing in the property in dispute and keeping it locked. The suit was contested on number of pleas including that the provisions of U.P. Act No. 13 of 1972 are applicable. It was further pleaded that the defendant tenant is not in arrears of rent. After receipt of the notice determining the tenancy, arrears of rent was sent through money order, which was wrongly refused by the landlord. Thereafter, money was deposited in a proceeding under Section 30(1) of the Act. The petitioner also claimed benefit of Section 20 of sub-clause (4) by making the requisite deposit on first date of hearing. On the basis of the pleadings of the parties, two issues namely, whether defendant is entitled for the benefit of Section 20 sub-clause (4) of the U.P. Act No. 13 of 1972 to save his tenancy and whether the provisions of U.P. Act No. 13 of 1972 are not applicable, as the plaintiff is a charitable trust and religious institution, were struck. So far as question no. 2 is concerned, the same was decided against the plaintiff by the trial court and that matter has attained finality.
(3.) THE trial court held that the defendant tenant is a defaulter and is not entitled to get the benefit of Section 20 sub-clause (4) of the Act, as the rent deposited under Section 30(1) of the Act was not valid. It decreed the suit for recovery of arrears of rent and damages and for ejectment by the judgment and decree dated 2nd August, 1997. The matter was carried in revision under Section 25 of the Provincial Small Cause Courts Act, 1887 being Revision No. 15 of 1997, which came up for consideration before the Additional District Judge, Gorakhpur, who has confirmed the judgment and decree of the trial court. Feeling aggrieved by the aforesaid two judgments, the present writ petition is at the instance of the defendant tenant. It appears that during pendency of the writ petition, Shri Paras Nath through whom the suit was instituted has expired and in his place, his heirs have been substituted. Shri R.C. Singh, learned counsel for the petitioner submits that the finding recorded by the two courts below on the question of non applicability of Section 20 sub-clause (4) of the U.P. Act No. 13 of 1972 is legally untenable. Elaborating the argument, he submits that undoubtedly, his son has got constructed a house. Even then, Section 20 sub-clause (4) of the Act will be applicable notwithstanding the proviso therein. The crux of the argument is that the son of the petitioner is residing separately, and therefore, judgment is vitiated. In contra, Shri M.K. Nigam, learned counsel for the respondent-landlord, on the other hand, in view of the proviso to Section 20 sub-clause (4) of the Act, the petitioner is not entitled to get the benefit of Section 20 sub-clause (4) of the Act. Considered the respective submission of the learned counsel for the parties and perused the record.;