- (1.) RAKESH Tiwari, J. This petition has been filed by the tenant for quashing the orders dated 14-1-1997 by which the Civil Judge Basti (Junior Division) has struck off the defence of the petitioner and allowed the applications Ga 2/32 and Ga 2/36 directing the case file to be put up on 20-1-1997 for evidence. The petitioner has also challenged the order dated 11-9-2002 passed by the Revisional Court affirming the aforesaid order dated 14-1-1997 passed by the trial Court.
(2.) THE facts of the case are that respondent No. 3 Kanhaiya Lal filed Suit No. 198 of 1998 for eviction and recovery of arrears of rent from the petitioner. On the said suit a compromise was arrived at between the tenant Munni Lal and the landlord Kanhaiya Lal that the landlord will demolish the shop under the tenancy of Munni Lal and construct a shop measuring 4' X 9' in its place, the possession of which will be handed over to the petitioner in lieu of the demolished shop. According to the petitioner, it was also agreed between him and the landlord that till such time the new shop is constructed and its possession is handed over to him. The landlord was also to allow the petitioner-tenant to run his business in another vacant shop in of the landlord on rent @ 100/- per month till possession of newly constructed shop is given to him. The terms of compromise in this regard relied upon by the petitioner in the Courts below are as under: It is alleged by the petitioner that though possession of the petitioner's shop was taken by the landlord in pursuance of the agreement who demolished the same but he neither constructed the new shop in its place nor allowed the tenant to do his business in the vacant shop in the possession of the landlord as per the alleged terms of the compromise relied upon by the tenant. It is stated that the petitioner filed proceedings against the landlord for compliance of the terms of the compromise and the landlord also filed J. S. C. Suit No. 6 of 1991 against the tenant Munni Lal and Chaudhary Kashi Tailors through its Proprietor Munni Lal for arrears of rent since October 1989 amounting to Rs. 2,070/- @ Rs. 90. 00 per month and praying for the ejectment of the petitioner on this ground. It was averred in the suit that notice dated 25- 7-1991 under Section 106 of Transfer of Property Act had been served on the tenant on 30-7-1991 but the shop in dispute had neither been vacated nor arrears of rent had been paid to the landlord who also claimed damages amounting to Rs. 2,070/- @ Rs. 300/- day for use and occupation of the shop after termination of the tenancy. Expenses and Court fee was also claimed.
(3.) WRITTEN statement was filed by the tenant in JSC Suit No. 6 of 1991, bringing on record the terms of compromise in earlier Suit No. 198 of 1988 and denying the plaint allegations inter alia that he was an old tenant and was doing business of tailoring under the name of Chaudhary Kashi Tailors which was being done by his father and he is neither in arrears of rent nor has committed any default in its payment; that the landlord had earlier filed Case No. 7 of 1987 under Provincial Small Causes Court Act against him and two other tenants in the Court of Munsif Basti. It was also stated that the petitioner alongwith other tenants had also filed Case No. 198 of 1988 in the Court of Civil Judge, Basti against eviction in which they had been granted interim injunction; that a compromise written statement entered into between the parties in which the landlord agreed to provide the petitioner with a new shop of 9 ft x 4 ft dimension as well as a triangular space 9 ft x 4 ft (Chabutra) on rent Rs. 100/- per month; that while shifting the petitioner to the Chabutra. It was found that it was only half in size and floors etc. of the shop offered to the petitioner was incomplete. It was also averred by him that after the death of his father the tenancy devolved upon his mother Smt. Budhna and after her death on him and that he has been depositing rent in the case Budhna v. Kashi Prasad, and is not in arrears of rent due to the petitioner. It was also stated in the written statement that the landlord had let out the newly constructed shop to another person instead of to the petitioner as agreed. The entire rent @ Rs. 90/- per month has been deposited in the Court. The landlord moved an application in the suit under Order XV, Rule 5 C. P. C. for striking off the defence of the tenant on the ground that he had failed to comply with the aforesaid provisions of law.;