Prakash Krishna, J. - (1.) THE present writ petition was heard earlier ex -parte and was allowed by this Court by an order dated 9.7.2004. Subsequently, an application to recall the aforesaid judgment was filed and the said application was allowed by the order dated 20.1.2006. Now, the matter was listed before me. S.C.C. Suit No. 348 of 1984 was instituted by the present petitioner for eviction of the respondent -tenant, on the ground that the respondent -tenant has failed to pay the arrears of rent inspite of notice of demand and termination of tenancy. The property in question is House No. 26, Old Laskar Line, Allahabad and the respondent was tenant on monthly rent of Rs. 25/ -. The respondent -tenant failed to deposit the amount as required under Order XV, Rule 5, C.P.C. before the Judge, Small Cause Court where the suit was pending. The Trial Court by its order dated 26.9.1984, vide Annexure -4 to the writ petition, struck off the defence of the tenant on an application filed by the plaintiff -landlord, being Application No. 12 -C. Subsequently, the suit was decreed by the judgment and decree dated 23.1.1986. It may be added here that the order striking off the defence became final as it was not challenged by the tenant. The tenant -respondent filed Civil Revision No. 411 of 1986 against the decree passed in aforesaid S.C.C. Suit No. 348 of 1984. The Court below, by the impugned order, has allowed the revision and set aside the judgment and decree of the Trial Court and restored back the matter to the Trial Court to re -hear and decide the suit on merits. Liberty has been granted to the respondent -tenant to file an application for recall review of the order dated 26.9.1981 striking off the defence of the tenant. Feeling aggrieved against the aforesaid order, the present writ petition has been filed.
(2.) HEARD Sri A.N. Sinha, learned Counsel for the petitioner and Sri Sanjay Misra, learned Counsel for the contesting respondent. Sri Sinha submits that the Court below has exceeded in its jurisdiction in resorting the matter back to the Trial Court in as much as on the facts as admitted by the parties, the order striking off the defence of the tenant -respondent is in accordance with law. He submits that no useful purpose is going to be served by resorting back the matter to the Trial Court.
(3.) IN response, the learned Counsel for the respondent -tenant submits that due to wrong legal advice, the amount, as required to be deposited under Order XV, Rule 5, C.P.C., was not deposited in the Court below where the suit was pending but it was deposited under section 30 of U.P. Act No. 13 of 1972 before the Court concerned. He submits that in this view of the matter that the respondent -tenant was misled due to incorrect legal advice given by his lawyer, the justice has been done by the Revisional Court by resorting back the matter to the Trial Court.;