Poonam Srivastav, J. - (1.) HEARD, Sri M. K. Gutpa, learned counsel for the tenant/petitioner and Sri A. K. Gupta, learned counsel for the landlord/respondents.
(2.) COUNTER and rejoinder-affidavits have been exchanged. As agreed between the parties, the writ petition is being decided finally at the stage of admission itself under the High Court Rules. S.C.C. Suit No. 173 of 1996, was instituted by the plaintiff/ respondents for recovery of arrears of rent and ejectment against Kailash Chandra, predecessor in interest. The dispute relates to a building bearing municipal No. 19/278 Premier Nagar, Aligarh, which was let out on monthly rent of Rs. 375. A suit was instituted for eviction on the ground of arrears of rent w.e.f. July, 1994, as a consequence his tenancy was terminated by a notice dated 16.8.1996. On receipt of notice, rent was not paid. Hence, the suit.
(3.) THE contention of the counsel for the petitioner is that father of the petitioner late Kailash Chandra was not served with any summons either by registered post or process server. THEre was nothing on record that the tenant ever refused notice. An ex parte decree was passed and service of the ex parte decree was effected by publication. THE petitioner filed an application dated 6.8.1997 for setting aside ex parte decree dated 22.7.1997. THE application is annexed as Annexure-2 to the writ petition. THE Judge, Small Causes Court, vide order dated 24.9.1997 had set aside the ex parte decree dated 22.7.1997 and fixed 11.11.1997 as next date. Subsequently, the case was adjourned on several occasions on account of the lawyers' strike or for the reasons the Presiding Officer was not sitting in the Court. On 29.9.1998, the defendant/tenant made a request for adjournment and the Court was pleased to fix 16.10.1998. On that date, the defendant/tenant filed his written statement and also deposited a sum of Rs. 14,500 in compliance of Section 20 (4) of U. P. Act No. 13 of 1972 (hereinafter referred to as the Act). THE written statement is annexed as Annexure- 3 to the writ petition. On perusal of the said statement, it transpires that the tenant had denied that there was any default on his part in making payment of rent, which was already paid till June, 1996 by means of four cheque Nos. 109721, dated 18.12.1994 for Rs. 2,250, 109727 dated 17.6.1995 for Rs. 2,250, 109733 dated 27.12.1995 for Rs. 2,250, 024743 dated 20.6.1996 for Rs. 2,250. These cheque numbers are mentioned in paragraph No. 9 of the writ petition. Reply notice to the demand notice is annexed as Annexure-4 to the writ petition, which supports the aforesaid contention that the four cheque numbers, date of issuance of the amount have also been mentioned in the reply notice. However, notice also mentions that in the event the landlord has deliberately not encashed the said cheques then the same may be returned and the tenant is ready to pay the entire rent in cash. The fact that the rent used to be deposited by means of cheques prior to July, 1994, is not disputed.;