Sudhir Narain - (1.) THIS writ petition is directed against the order dated 24-3-1989 passed by Second Additional Munsif, Kanpur Nagar, whereby he struck off the defence of the petitioner and the order dated 15-11-1990 passed by respondent No. 1, affirming the said order in revision.
(2.) THE dispute relates to Premises No. 87/157, Acharya Nagar, Kanpur. THE petitioner was let out Plot Nos. 20 and 21, G.T. Road, Kanpur. On these plots, he raised constructions, Respondent No. 3 purchased the disputed property from its previous owner Km. Asha Lata and Ashok Kumar Srivastava by registered sale deed. Respondent No. 3 sent a composite notice to the petitioner dated 8th July, 1987, demanding arrears of rent for the period 27-10-1986 to 30-6-1987 and terminating the tenancy. THE petitioner sent a reply on 30th July, 1987, stating that rate of rent is Rs. 15/- per month and the rent for the period upto 30th June, 1987 has already been deposited in proceedings under section 30 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Acts'). On 28th August, 1987 respondent No. 3 filed suit No. 1465 of 1987 against the petitioner in the court of Munsif City, Kanpur, for arrears of rent, ejectment and damages on the allegations that the petitioner was let out an open piece of land and, therefore, U. P. Act No. XIII of 1972 was not applicable. THE rate of rent was Rs. 30/- per month and the tenant has not complied with the notice sent to him and he was, therefore, liable for ejectment. THE petitioner filed written statement on 30th May, 1988. He took the plea that though open piece of land was taken on rent, but he was permitted to raise permanent constructions by the landlord, and, on the basis of such consent, he had raised permanent constructions and, therefore, he was entitled to the protection of section 29-A of the Act. THE rate of rent is Rs. 15/- per month and he had already deposited rent for the period upto July, 1987, in the Court in proceedings under section 30 of the Act. THE Court has no jurisdiction to entertain the suit. On 8th August, 1988, respondent No. 3 filed an application to strike off the defence of the petitioner under the provisions of Order XV Rule 5 of the Code of Civil Procedure (hereinafter referred to as 'the Code') on the failure of the petitioner to deposit rent in accordance with the said provision. The petitioner filed objections opposing the said application stating that the rent for the period upto July, 1987, had already been paid and no rent was due on the date of filing of the suit. On 9-2-1989, counsel for the petitioner moved an application to permit the petitioner to deposit the amount due upto the date and condone the delay in complying with the provisions of Order XV Rule 5 of the Code. In the application, he has stated that he was engaged as a counsel by the defendant to defend his case. He thought that the rent upto July, 1987, had already been deposited in proceedings under section 30 of the Act and the rent claimed in the suit was upto July, 1987, he advised his client not to deposit the amount claimed by the plaintiff in the suit as the petitioner was not defaulter, but on looking carefully the provisions of Order XV Rule 5 of the Code, he realised mistake that the tenant was liable to deposit rent for the period subsequent to the filing of the suit. The trial court took the view that the counsel did not file any affidavit in support of his averments in the application and, therefore, there was no justification for allowing the application to condone the delay. The defence of the petitioner was struck off on 2-3-1989. The petitioner filed revision against the said order and the revision has been dismissed by respondent No. 1 vide order dated 15-11-1990 These orders have been challenged in the writ petition.
(3.) I have heard Sri S. N. Verma, learned Senior Counsel for the petitioner and Sri K. M. Dayal, learned Senior Counsel for the respondent no. 3. Learned counsel for the petitioner has raised three submissions. His first submission is that a suit for eviction relating to a building can be filed in the court of Judge, Small Causes. Article 4 of the Second Schedule of the Provincial Small Cause Courts Act makes an exception relating to a suit by the lessor for the eviction of a lessee from a building after determination of las lease and for the recovery from him of compensation for the use and occupation of that building after determination of lease. Such suits are cognizable by the Court of Judge, Small Causes. The building was existing over the disputed land and such suit will be cognizable in the Court of Judge, Small Causes. The provisions of Order XV Rule 5 of the Code will be applicable only to such suits.;