Heard learned counsel for the petitioner and perused the record.
This petition is directed against concurrent orders dated 21.8.2006 and 22.2.2010 by which a suit for eviction and arrears of rent was decreed by both the courts below.
It appears that the petitioner was a tenant of the disputed premises at a rate of rs.40/- per month and when he defaulted in payment of rent, same was demanded vide notice dated 29.4.2002 for the period 1.2.1984 to 31.3.2002. However, despite replying to the notice, he neither deposited the rent nor vacated the premises forcing him to prefer a S.C.C. Suit no.5 of 2003 before Judge, Small Cause Court for his eviction and arrears of rent.
The petitioner-tenant contested the suit admitting the relationship of landlord and tenant and the rate of rent but denying the fact that he was a defaulter. After considering the evidence on record, both the courts below have decreed the suit for eviction and arrears of rent.
It is urged that the defence of the petitioner was illegally struck off under order 15 Rule 5 because the entire rent had already been deposited in proceedings under section 30 of the Act.
It is not denied by the petitioner that after filing of the suit, no amount deposited under section 20 (4) of the Act and he allegedly kept on depositing the rent under section 30 which was also not proved before the courts below. The courts below have relied upon a Division Bench judgment of this Court rendered in the case of Haidar Abbas Vs. Additional District Judge and others [2006 (1) A.R.C. 341] and Ram Kumar Singh Vs. IIIrd Additional District Judge, Ghaziabad [2003 (1) A.R.C. 294] wherein it has been held that the tenant is bound to deposit all arrears of rent at the date of first hearing in the trial court after adjusting the amount already paid under section 30 and further he has to deposit the rent continuously with the trial court. The learned counsel for the petitioner has failed to point out any other contrary decision of a Larger Bench or Superior Court. Therefore, the argument cannot be accepted.
It is then urged that no opportunity was granted for cross-examining the plaintiff.
It is apparent from the record and the judgment of the courts below that after the defence of the petitioner was struck off, the next date fixed for defence of the plaintiff was 2.5.2006 whereafter it was fixed for 9.5.2006 but the petitioner did not appear to cross-examine the plaintiff even though an application was moved on behalf of the petitioner on 9.5.2006 to obtain a copy of the formal order dated 24.3.2006. Again when the plaintiff filed his evidence through affidavit on 21.7.2006, the petitioner did not appear to cross-examine him. Even on the next date when the matter was fixed on 28.7.2006, the petitioner did not appear and therefore, the matter was fixed for argument on 7.8.2006 and on that date also the petitioner did not appear where-after, the arguments were heard on 21.8.2006 and on that date also he absented from the proceedings. The court has held that the petitioner had sufficient opportunity for cross-examination but he himself absented from the proceedings and therefore, in the opinion of the court, he cannot raise any grievance now.
No other point has been urged.
For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected.
Order Date :- 2.4.2010 AU