S.U.KHAN, J. - (1.) THE suit in between landlord and tenant filed 31 years before i.e. in the year 1972 is still pending. Landlords are also at fault for this undue delay in disposal as they are more interested in getting the defence of the tenant struck off than decision of the suit.
(2.) KAMLA Devi landlady since deceased and survived by respondents 3 to 8 filed a suit being suit No. 194 of 1972 against tenant Anpurna Chakravorty since deceased and survived by petitioner and respondents 9 to 12. The suit was later on transferred to the Court of JSCC Varanasi and registered there as SCC Suit No. 611 of 1975, Kamla Devi initially mortgaged the house in dispute to Anpurna Chakravorty in April or June, 1967 thereafter, she let out the house to Anpurna Chakravorty in August, 1967 at the rate of Rs. 90 per month. According to plaint allegations the tenant was in arrears of rent from 1 -5 -1971 to 31 -3 -1972, that on oral demand the tenant refused to pay the rent and gave a notice to the landlady that the rent was adjusted in the interest on the mortgage, that thereafter, landlady by notice dated 1 -4 -1972 formally demanded the rent from 1 -5 -1971 to 31 -3 -1972 at the rate of Rs. 90 per month (total Rs. 990) and terminated the tenancy of the tenant through the said notice, that the tenant did not pay the rent in response to the notice and gave a wrong reply on 27 - 4 -1972 to the effect that the entire rent had been adjusted in the interest on the mortgage. It was further pleaded in paragraphs 6, 7 and 8 of the plaint that the house in dispute was mortgaged by the plaintiff to the tenant through the deed of simple mortgage for a sum of Rs. 6,000 out of which plaintiff paid Rs. 2,540 to the defendant in cash and amount of Rs. 3,960 was adjusted in rent from 1 -8 -1967 till 30 -4 -1971 and in this manner the entire amount under the mortgage stood paid and mortgage stood redeemed. The tenant filed the written statement admitting the rate of rent to be Rs. 90 per months. However, in paragraph 20 of the written statement it was stated that the mortgage did not stand redeemed and that rent payable to the plaintiff had been adjusted towards the interest of the mortgaged loan with the consent and desire of the plaintiff and that nothing was due to the plaintiff on account of arrears of the rent. A suit between the parties regarding mortgage also appears to have been filed (Suit No. 106 of 1972). It is not clear whether the said suit has been decided or not?
(3.) PLAINTIFF filed an application dated 4 -9 -1974 paper No. 37 -C under Order XV Rule 5 CPC for striking off the defence of the tenant for non -deposit of consolidated, admitted rent and monthly rent which was second of its nature. The said application was rejected on 7 -1 -1975 and revision filed against the same being civil revision No. 164 of 1975 was also dismissed on 4 -3 -1977. Both the orders are Annexure SA I and SA III to the supplementary affidavit. In Annexure SA III it is mentioned that first application for striking off defence was filed on 7 -3 -1973 numbered as 20 and was rejected by trial Court on the ground that “the defence is that no rent is due by defendant to the plaintiff. File.” Plaintiff thereafter, filed third similar application No. 174 -C under Order XV Rule 5 CPC which was allowed by JSCC Varanasi on 24 -4 -1990 (Annexure 6 to the writ petition). Against the said order tenant filed revision being civil revision No. 91 of 1990. In the said revision the Counsel for the tenant moved an application on 1 -3 -1995 seeking time to deposit the rent. The revision was disposed of in term of the said application on 4 -3 -1995 (Annexure 10 to the writ petition). Through the said judgment it was provided that the file should at once be sent to the JSCC with the direction that after providing opportunity of hearing to both the parties the suit must be decided in accordance with law. In the last but one paragraph of the said judgment it was ordered that the request of learned Counsel for the revisionist (tenant) that at least ten days time should be given to make deposit in accordance with his application was accepted and it was directed that the defendant within ten days of the said order should deposit whatever amount he desired to deposit. Tenant revisionist filed an application on 29 -3 -1995 before the revisional Court (XI ADJ, Varanasi) for recall of the order dated 4 -3 -1995 on the ground that he did not authorize his Counsel to move application dated 1 -3 -1995 and the said application was filed without his instruction. The said application was rejected on 31 -3 -1995.;