A.P.Singh - (1.) THROUGH this writ petition, Himmat Singh petitioner, who is the tenant of a shop at Mohan Koti, Madan Road, town Deoria. district Deoria, has sought quashing of the order dated 26-7-1993 passed by the ill Additional District Judge, Deoria and the order dated 3-4-1993 passed by the Civil Judge, Deoria (Aenexure 3 and 1 respectively to the writ petition). These orders were passed in proceedings under Small Cause suit no. 8 of 1984 filed by respondents nos. 3, 4, 5 and 6 jointly for eviction of the petitioner and recovery of rent and other arrears of water tax etc. from the petitioner in respect of the said shop (respondents 3 to 6 hereinafter shall to be referred to as the respondents). The order dated 26-7-93 was passed by III Additional District Judge, Deoria respondent no. 1 in revision under section 25 of the Provincial Small Cause Courts Act and the order dated 3-4-93 was passed by Additional Civil Judge, Deoria decreeing Small Cause suit no. 8 of the 1984 filed by the respondents,
(2.) IN brief the facts of the case are as under. The shop mentioned above originally belonged of Janki Mahal Trust in district Faizabad which sold the same by two separate sale deeds dated 9-8-83 in favour of the plaintiff-respondents. Both the sale deeds were executed on the same date-one being in respect of an area 170 Sq. feet in favour of plaintiff-respondents l and 2 whereas the remaining area 420 Sq. feet was transferred by separate sale deed on the same date in favour of respondents 3 and 4. Consequent to the transfer of the shop in dispute by two separate sale deeds in favour of the respondents, the previous owner, namely, Janki Mahal Trust through the lawyer sent notice to the petitioner on 8-10-83 informing him of the sale of the shop in dispute in favour of respondents and asking him to pay rent to the respondents in respect of the said shop. The respondents, however, brought a suit on the allegation that the petitioner failed to pay the rent inspite of the written notice sent to him by the previous owner of the shop in dispute on 8-10-83 as well as the oral notice given by them informing the petitioner of purchase themselves and also the oral demand of rent from the petitioner coupled with a written notice sent to the petitioner through lawyer under section 111-G and 106 of the Transfer of Property Act dated 22-5-1985. As stated above, the suit was for eviction of the petitioner from the shop in dispute as well as for recovery of rent from 1-8-83 and damages and arrears of water tax and house tax with effect from 1-4-1975. The petitioner contested the suit on several grounds-main ground being that the respondents were not owners/landlords of the shop in dispute, hence no rent was payable to them. He also pleaded that the respondents inspite of notice having been sent to them by the petitioner did not identify the person to whom the rent was payable and in what proportion, as such, there was no cause of action for eviction as until the petitioner was informed about the proportion in which the rent was to be paid, there was no question of the rent being due and the consequent default in paying rent for giving rise to the suit. Petitioner also claimed that after the respondents failed to identify as to in what proportion the rent was to be paid to them and the person to whom the rent was to be paid, he sent the rent by money order which was refused by the respondents. Thereafter, he filed an application under Section 30 of U.P. Act No. 13 of 1972 and deposited the rent in the court. Hence the question of default in payment of rent did not arise. The petitioner also challenged the sale deed dated 9-8-83 by filing suit no. 945 of 1984. The respondents maintained that since the petitioner has denied their title and has also failed to pay rent and other dues in respect of the shop in dispute and had also failed to vacate the shop in dispute on service of notice, as such, he was liable to be evicted therefrom by the Court.
(3.) THE petitioner as well as respondents filed documents in support of their respective pleas. Out of the documents filed by respondents, paper nos. 57-C and 66--C being notice for apportionment regarding payment of rent of the shop in dispute was also filed by petitioner. By this document petitioner tried to establish that inspite of the said notice the respondents failed to identify their respective shares in the shop in dispute and their respective share in the rent to be paid total of which was only Rs. 50/- per month for the entire shop and on account of the failure of respondents in this respect rent could not be paid as such there was no default in payment of rent by him. The trial court examined respondent no. 4 who, according to the respondents, was the landlord of the shop in dispute and had the right of i receiving rent from the petitioner. Respondent no. 4 proved the documents filed by respondents as well as the plaint case. He was not fully cross-examined as the petitioner refused on more than one date fixed for the purpose to cross examine him. The case, therefore, proceeded ex parte and the trial court decreed the suit after recording a finding that the respondents were the owners of the shop in dispute and the petitioner had committed default in payment of rent which inspite of being demanded by the respondents had not been tendered nor paid, petitioner also malafidely denied the title of the respondents in respect of the shop in dispute and had malafidely deposited rent in the court under Section 30 of U.P. Act no. 13 of 1972 although receipt of rent was never refused by the respondents as the same was never tendered by the petitioner. It is also held that petitioner had not been able to prove the tender of the rent either personally or through money order. The trial court also held that the petitioner had also not been able to prove the sending of notice vide paper nos. 57 C and 66 C regarding demand for apportionment of the shares of the respondents in the shop in dispute. It was also held that the respondents demanded the rent orally as well as by notice sent to the petitioner through lawyer under Section 106 read with Section 111G of Transfer of Property Act, as alleged by them in the petition. With these findings the suit was decreed both for recovery of rent, damages and for house and water tax. as well as for eviction of the petitioner from the shop in dispute. Feeling aggrieved by the decree of the trial court petitioner filed revision under Section 25 of the Provincial Small Cause Courts Act challenging the decree of eviction as well as of payment of arrears of rent, damages and house and water tax on the same grounds on which he had contested the suit. Apart from the above, the petitioner also attacked the procedure adopted by the trial court in deciding the suit ex parte under Order 17 Rule 3 of the Code of Civil Procedure. It was contended that the circumstances did not justify the trial court to have proceeded and decreed the suit by taking report to Order 17 Rule 3 of the Code of Civil Procedure;