- (1.) THIS is a writ petition filed by a defendant in a suit for ejectment. The suit for ejectment was filed on the ground of default. The defence was that the defendant had made deposite of the rent in dispute in proceedings under Section 30, U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, (hereinafter referred to as the Act ). The suit was decreed by the Court of Small Causes holding that there was a default. The notice was served by refusal. The defendant had no right to pay the rent to Ram Kali or deposit it under Section 30 aforesaid. There was no question of non-joinder as the plaintiff was accepted as landlord by payment of rent. The suit was decreed against the petitioner on 14th of October, 1977. He filed a revision under Section 25, Provincial Small Cause. Courts Act, before the District Judge, Kanpur. The revision was transferred to IIIrd Addl, District Judge, Kanpur, for disposal. 8th September, 1979, was fixed for hearing of the revision. The defendant was absent and consequently the revision was dismissed in default.
(2.) AN application for restoration was filed within four days showing that the petitioner's son-in-law was doing pairvi in revision. Respondent No. 2 reached the Court at 1 P. M. when the case was not taken up. Thereafter he went at about 2. 30 P. M. when he was informed that the case was dismissed in default. Sri Devendra Swaroop appearing for the respondent contended that the petitioner's pairokar or the petitioner himself has been negligent in prosecuting the revision. There is no doubt that there was negligence on the part of the petitioner or his agent. In Anrudh Singh v. Rupa Kunwar, a Division Bench case of our Court, reported in AIR 1925 All 601, it was held: "that the plaintiff's negligence in starting for the last train and missing it, was human and not irreparable, that it could be repaired by paying the costs of the opposite party and that the suit should be restored. " There is another aspect of the case, The Court below was dealing with the revision under Section 25, Provincial Small Cause Courts Act. Section 25 provides that the revision lies to the Court for examining whether the Judgment of the Judge Small Causes was according to law. Thus there would be no scope for dismissal in default. The Revisional Court under Section 25, Provincial Small Cause Courts Act had to examine the Judgment of the Trial Court in accordance with that section and decide the revision on merits. Sri Devendra Swaroop argued that there was a clear default in payment of rent. After examining the annexures-'2'and '3'of the writ petition i. e. notice issued on behalf of one Ram Kali under Section 30 of the Act, the order and the written statement filed in the suit, I cannot agree with him. The proceedings under Section 30 though decided ex parte were not got reopened by the Respondent. He had the remedy of getting the ex parte order set aside in accordance with Section 34 and Rr. 22 and 32 and contest the proceedings under Section 30, if he had no prior knowledge. The view of the Court of Small Causes that Smt. Ram Kali was not declared to be a landlord by a Court of law and consequently there could be no dispute is wrong at its face. The dispute of ownership is not raised by a decree of declaration but is solved by it. The order under Section 30 of the Act is binding unless set aside in accordance with law.
(3.) IN the result, the petition is allowed. The Order dated 8-12-1979, dismissing the revision in default, is quashed. The revisional Court is directed to decide the case in accordance with law after affording a reasonable opportunity of hearing to the parties. As the petitioner has been found guilty of negligence he is not entitled to any cost. The Revisional Court is directed to decide the revision in accordance with law. The revision may be decided expeditiously. Petition allowed. .;