S.P.Srivastava, J. - (1.) FEELING aggrieved by a decree of ejectment and revovery of arrears of rent and damages for use and occupation pendente lite and future passed against the petitioner by the Judge Small Cause courts which was affirmed by respondent no. 1 In revision under section 25 of the Provincial Small Cause Courts Act he has approached this court seeking quashing thereof.
(2.) THE brief facts shorn of details and necessary for the disposal of this case are that the plaintiff respondents had filed a small cause suit against the petitioner praying for his ejectment from the premises in dispute and for recovery of arrears of rent and damages for use and occupation. THE assertions made in the plaint were that the building in question had been newly constructed in the year 1983 and fell out side the per view of the provisions contained in U. P. Urban Building (Regulation of getting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'Act'). It was further asserted that the defendant was tenant of the accommodation in dispute at the rate of Rs. 65/- per month. It was further asserted that liability for the payment of the water fax in respect of the accommodation in dispute also rested on the defendant. THE plaintiff further asserted that inspite of the notice of quit and payment of arrears of rent having been served on the defendant he had neither paid off the arrears of rent nor had vacated the premises, hence the suit. THE plaintiff claimed pendente lite and future damages for use and occupatlon/mesne profits at the rate of Rs. 600/- per month on the assertions that the premises in dispute could be let out at a monthly rent of Rs, 600/- per month. The aforesaid suit was contested by the defendant denying the plaint allegations and asserting that it had been filed on incorrect facts. During the pendency of the suit, the tenant petitioner moved an application, paper No 65-C requesting that an advocate Commissioner be appointed who should be required to submit report regarding the period of construction of the shop in dispute. The trial court heard the counsel for the parties on the merits of the aforesaid application on 5-2-1991 and fixed 14-2-1991 for orders On 14-2-1991, the application, paper no. 65-C was rejected by a detailed order. After rejecting the application, the trial court fixed 25-2-1991, for evidence. On 25-2-1991, as the order sheet shows, the case was called out repeatedly but nobody responded for the defendant. This date had been fixed for the defendant's evidence. Neither the defendant cor his counsel was present to give the evidence. In this circumstances, the trial court closed the evidence of the defendant and heard the arguments of counsel for the plaintiff and fixed 27-2-1991 for judgment.
(3.) AFTER considering the evidence on the record and the oral evidence of Rajendra Shankar, PW 1 who had not been cross-examined inspite of repeated opportunities having been afforded to the defendant, the trial court decreed the suit as claimed. The trial court determined the rate of damages for use and occupation for the premises in dispute to be Rs. 600/- per month on the basis of the statement of PW 1 to the effect that if the premises in dispute is let out then it may fetch a rental of Rs. 600/- per month. From the sequence of facts indicated above, it will be apparent that inspite of the notice of 14th February, 1991, which was the date fixed in the case and on which date 25-2-1991 had been fixed for the defendant's evidence, the petitioner did not appear to attend the case on the date fixed for hearing and did not lead any evidence in support of his case. The suit was therefore, decreed exparte on 27-2-1991. In such a state of affairs two courses were open to the defendant. He could either move an application under order 9 rule 13 Civil Procedure Code, seeking the setting aside of the exparte decree making out the sufficient cause for his non appearance on 25-2-1991 or he could straight away challenge the decree passed by the Judge Small Cause Courts in a revision under section 25 of the Provincial Small Cause Courts Act. The petitioner in the present case, chose to avail the remedy of a revision envisaged under section 25 of the Provincial Small Cause Courts Act.;