JUDGMENT S.U. Khan, J.
1. This is tenants' writ petition. Landlady-respondent No. 3 Smt. Shanti Devi filed SCC suit No. 47 of 1984 against the tenants-petitioners before JSCC/Munsif, Shahjahanpur. The suit was filed for eviction on the ground of default. In the said suit an application for striking off the defence of tenants-petitioners was filed on the ground that they had not deposited the entire arrears of rent admitted by them on the first date of hearing. The said application of the landlady was allowed ex-parte on 24.4.1986, as on that date tenant-petitioners had not appeared. Through the said order defence of the defendant-petitioner was struck off. Thereafter plaintiff's evidence was recorded, evidence was closed, arguments were heard and 28.4.1986 was fixed for judgment. On 28.4.1986 the trial Court found that landlady-plaintiff failed to prove her case inspite of the fact that suit proceeded ex-parte. Suit was therefore dismissed through judgment and decree dated 28.4.1986. Against the said judgment and decree plaintiff-respondent Smt. Shanti Devi filed SCC Civil revision No. 73 of 1987. The revisional Court held that plaintiff had filed an application for amendment of the plaint seeking an amendment to the effect that rent was due from 4.5.1981 and not from 4.5.1984 and as the trial Court had not disposed of that application hence judgment and decree of the trial Court through which suit was dismissed was erroneous. Accordingly revision was allowed by District Judge, Shahjahanpur on 5.5.1988 judgment and decree dated 28.4.1988 was set aside and suit was remanded. After remand the trial Court by order dated 13.1.1989 allowed the amendment application of the plaintiff. Thereafter, tenant-defendant filed an application for permission to file written statement. The trial Court through judgment and order dated 20.1.1990 rejected the application of the tenants and refused to permit them to file written statement. Against the said order petitioners filed SCC revision No. 17 of 1990. IIIrd A.D.J. Shahjahanpur through judgment and order dated 5.9.1990 rejected the revision hence this writ petition.
2. The revisional Court wrongly held that on 28.4.1986 suit was dismissed in default. On 28.4.1986 suit was dismissed on merit. Both the Courts below mainly placing reliance upon Mohd. Ali v. Indar Lal 1983 (2) A.R.C. 353 held that as order dated 24.4.1986 (which had been passed before the suit was dismissed) was not challenged by the tenants in revision hence they could not question its validity and as by the said order their defence had been struck off hence they could not be permitted to file written statement.
3. In my opinion the view of the Courts below is erroneous in law. When suit was earlier dismissed on 28.4.1986 on merit all the interim orders passed in the suit merged in the final judgment. After setting aside of the said judgment and remand by the revisional Court every thing was open again. First date of hearing has to be decided after remand. Through amendment in the plaint the entire question of default assumed new significance as fresh date since when according to the plaintiff rent had not been paid was given. Even otherwise after amendment in the plaint it was essential to provide opportunity to file additional written statement to the tenants. In any case unless written statement is filed question of striking off the defence for not depositing the entire rent on the first date of hearing does not arise as without perusal of written statement it cannot be ascertained as to whether defendants have admitted any rent due or not. Defendants could not challenge the order of 24.8.1984 as just after four days i.e. on 28.8.1986 suit itself had been dismissed.
4. In the aforesaid authority of Mohd. Ali suit had been decreed EX-PARTE and later restored. In the instant case suit was dismissed not in DEFAULT but on merit. The principle that on restoration of suit, interim orders revive applies only when suit is either dismissed in default or decreed ex-parte and thereafter it is restored. This principle does not apply when suit is decided on merit and thereafter judgment is set aside by higher Court and matter is remanded. The Supreme Court in a recent authority reported in A.I.R. 2004 S.C. 3992 (V. Jacob v. S. Geevarghese) has held that after restoration of suit dismissed in default only certain types of interlocutory orders (like injunction order) revive and not all types of interlocutory orders. Even otherwise the aforesaid authority is no more good law in view of later authority of Supreme Court reported in S.C. Jain v. A.D.J. A.I.R. 1989 S.C. 1070 wherein it is held that the date fixed after setting aside of ex-parte decree is the date of first hearing. In the aforesaid authority of Mohd. Ali suit was decreed ex-parte. While applying for setting aside ex-parte decree defendant could also pray for setting aside order of striking off the defence which he did not do. In the instant case suit was dismissed on merit hence there was no opportunity available to the defendant to challenge order of striking off the defence through revision
5. Accordingly I find that both the impugned orders are erroneous in law. Writ petition is therefore allowed. Both the impugned orders are set aside. Application of the tenant for permission to file written statement is allowed. Both the parties are directed to appear before the trial Court on 29.11.2005 which shall be treated to be first date of hearing. On the said date written statement must be filed. On the said date tenant shall also deposit the entire amount of rent which according to him is due till 31.10.2005. On the said date tenants-petitioners may also deposit the amount required to be deposited under Section 20(4) of UP. Act No. 13 of 1972 for claiming benefit of the said Sub-section.
6. I have held in Khursheeda v. A.D.J. 2004 (2) A.R.C. 64 that while granting relief to the tenant against eviction in respect of building covered by R.C. Act, writ Court is empowered to enhance the rent to a reasonable extent. There is no reason as to why the said principle cannot be applied to the instant case
7. Accordingly, it is directed that with effect from November, 2005 onward tenants-petitioners shall pay rent to the landlady-respondent at the rate of Rs. 500/- per month.