- (1.) S. Rafat Alain, J. This is tenant's petition under Article 226 of the Constitu tion for quashing the judgment and order of the learned 1st Additional District Judge, Aligarh, dated 5-11-1985 allowing the revision of the landlord and decreeing the suit for ejectment.
(2.) THE short and admitted facts of the case are that the accommodation in ques tion bearing House No. 5/28, Sarai Babu, Rasalganj,gali Laxmipuri, Aligarh was let out to the father of the petitioner tenant on a rent of Rs. 20/- per month. THE respondent landlord filed a suit against the petitioner's father for his ejectment as well as for recovery of arrears of rent and damages, inter alia, on the grounds that the tenant has committed default in payment of rent for the period from May, 1972 to 22-11-1976 and in spite of notice of demand, failed to pay the same nor vacated the premises; that the tenant has, without permission in writing of the landlord, made certain construction and material alteration in the building which has diminished its value and also disfigured it, and thus he is liable to be evicted under the provisions of U. P. Urban Buildings (Regulation of Letting, Rent and Evic tion) Act, 1972, (hereinafter referred to as Act No. 13 of 1972 ). THE tenant filed writ ten statement and contested the suit alleg ing that he has not committed any default in payment of rent, inasmuch as arrears of rent has been deposited at the first hearing of the suit and, therefore, he is entitled to get protection under sub- section (4) of Section 20 of Act No. 13 of 1972. THE allegation of material alteration without the consent of the landlord was also denied. It appears that before the learned Judge, Small Cause Court, the landlord raised objection that the tenant is not entitled to protection under sub-section (4) of Section 20 of Act No. 13 of 1972 on the ground that his two sons have acquired residential accommodation in the same city. However, the learned Judge, Small Cause Court, having appreciated the evidence and the provisions of the Act, repelled the contention of the landlord that the tenant is not entitled to protection under sub-section (4) of Section 20 of Act No. 13 of 1972. On the question of material alteration, the learned Judge, Small Cause Court was of the view that the landlord failed to prove the alleged material altera tion made in the building, hence dismissed the suit with cost by his judgment and order dated 14-12-1977. The landlord being aggrieved with the aforesaid judg ment and order of the learned Judge, Small Cause Court, preferred Revision No. 7 of 1978 before the learned District Judge, Aligarh, which was allowed and the suit was decreed with cost throughout by the learned Ilnd Additional District Judge, Aligarh vide his judgment and order dated 24-4-1980. It appears that the revisional Court was of the view that since one of the sons of the defendant acquired a vacant house in the same municipality in the year 1974 after commencement of U. P. Act No. 13 of 1972, the defendant tenant cannot get protection of sub- section (4) of Section 20 of the Act No. 13 of 1972 in view of proviso of sub-section (4) which provides that sub-section (4) shall not apply in rela tion to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state or has got va cated after acquisition any residential building in the same city, municipality, notified area or town area. The learned revisional Court fur ther found from the record that monthly rent of October, 1977 was not deposited on due date, Le. , November, 1977 and the rent of October and November was deposited in December, 1977, but the learned Judge, Small Cause Court condoned the delay without there being any representation by the tenant defendant giving material ex planation in that behalf within ten days of the first hearing and, therefore, it did not exercise its discretion in a judicial manner. In that view of the matter the revisional Court was of the view that the defence of the tenant-defendant is liable to be struck off in view of the provisions of Order XV Rule 5 of the Code of Civil Procedure which provides striking off defence for failure to deposit the admitted rent and regularly deposit of the monthly rent due within a week from the date of its accrual. However, the revisional Court did not enter into the finding of the Judge Small Cause Court on the question of material alteration alleged by the plaintiff- landlord as the defence of the tenant-defendant was struck off. Consequently, the revision was allowed and the suit was decreed with cost throughout and the tenant-defendant was allowed three months' time to vacate the building.
(3.) THE tenant defendant challenged the aforesaid judgment and order of the revisional Court in Civil Misc. Writ Peti tion No. 4290 of 1980 before this Court. This Court having heard the par ties, upheld the view taken by the revisional Court that the provision of sub section (4) of Section 20 of the Act No. 13 of 1972 not attracted in the facts of the case, and thus the finding of the learned revisional Court on the point of default was affirmed. However, on the question of striking off defence of the tenant, it was held that the revisional Court acted illegal ly in striking out the defence in revision and, therefore, vide judgment and order dated 2-9-1982 partly allowed the writ petition and remitted back the case to the revisional Court for disposal of the revision on merit on other issue, i. e. , al leged material alteration in the building which has diminished its value or utility or disfigured it.;