JUDGMENT B. K. Rathi, J.
1. The opposite party filed the suit for eviction and recovery of arrears of rent against the revisionist. The dispute is regarding house No. 24-E, Bank Road, Katra, Allahabad.
2. In brief, it was alleged that the opposite party is the owner and the landlord of the house in which the revisionist was tenant and the rate of rent was Rs. 1,500 per month. The house was constructed in the year, 1975 and thereafter, it was given on rent and, therefore, U. P. Act No. XIII of 1972 does not apply ; that the rent was not paid since July, 1996 ; that the tenancy has been terminated by the registered notice dated 24.8.1998 which was served on 31.8.1998. Hence, the suit was filed.
3. The revisionist filed the written statement claiming ownership of the house. He denied the tenancy.
4. The trial court framed necessary issues. The opposite party absented and, therefore, the suit proceeded in his absence and was decreed on the basis of the evidence adduced by the opposite party. No evidence of the revisionist was recorded. Against the decree, the present revision has been preferred under Section 25 of the Provincial Small Causes Court Act.
5. I have heard Sri Vimlesh Srivastava, learned counsel for the revisionist and Sri A. K. Gupta, learned counsel for the opposite party.
6. The first argument of the learned counsel for the revisionist is that there was no fair trial of the case and no opportunity to produce evidence was given to the revisionist. Therefore, the decree has to be set aside. It has been argued that the case was fixed for evidence on 28.2.2001. On that date, an application for adjournment was moved by the revisionist on the ground of illness of his counsel which was allowed subject to payment of Rs. 300 as costs and 29.3.2001 was fixed in the case ; that again on that date, application for adjournment was moved by the revisionist for the reason that the file has been misplaced by the counsel due to white wash at his house. This application for adjournment was allowed on payment of Rs. 600 as costs and 16.4.2001 was fixed for evidence. On that date, the case was adjourned to 30.4.2001 as the presiding officer was on leave on 16,4.2001. The revisionist again moved an application for adjournment for the reason that the father of the counsel died on 18.4.2001. This application for adjournment was allowed on payment of Rs. 1,200 as costs and 3.5.2001 was fixed for evidence ; that on 3.5.2001, the revisionist moved an application that he wanted to apply for transfer of the case before the District Judge ; that application was rejected. The evidence of the opposite party was already recorded in the case. His argument was heard and 14.5.2001 was fixed for judgment.
7. In the meantime, the revisionist moved an application for transfer before the District Judge on 9.5.2001. It was taken up on 11.5.2001. Unfortunately, on that date, the counsel for the revisionist became late and, therefore, it was rejected for default.
8. It has also been argued that thereafter the request was made by the counsel to the District Judge to reconsider the matter and the learned District Judge on his request called for the file of the case. Thereafter, the file remained with the District Judge and subsequently, it was sent to the trial court. The trial court on receipt of the file decreed the suit by Judgment dated 24.5 2001.
9. On the basis of these facts, it has been argued that applications for adjournments were moved for sufficient reasons on the personal grounds of counsel ; that the applications for adjournments had to be moved for unavoidable reasons. Inspite of that, penal costs were imposed and sufficient time was not granted ; that, therefore, there was no fair trial and the matter should be sent back for re-hearing.
10. Opposing the request, Sri A. K. Gupta, learned counsel for the opposite party argued that the suit was filed on 25.10.1998. On every date fixed in the case, the revisionist moved application for adjournment. He took adjournments as detailed in paragraph 7 of the counter-affidavit. It has not been denied that after taking as many as 18 adjournments, the written statement was filed under compulsion as the Court ordered that no further time shall be allowed. The revisionist again started taking adjournment and the statement of opposite party was recorded on 15.11.2000. However, he was not cross-examined and the revisionist started taking adjournments again on every date. Several dates were fixed for cross-examination and ultimately on 30.4.2001, the statement of P.W. 2 Mohan Lal was written. Thereafter, the revisionist took more than 12 adjournments and neither cross-examined the witness adduced by the opposite party nor produced his evidence. Therefore, the evidence was closed and the Court proceeded under Order XVII, Rule 2, C.P.C.
11. After considering the facts of the case, I am of the opinion that the trial court granted more than necessary adjournments to the revisionist. Therefore, it cannot be accepted that there was no fair trial. On the other hand, it appears that the trial court has shown more leniency than was necessary in granting adjournments in favour of the revisionist. Therefore, the argument that there was no fair trial and proper opportunity was not given cannot be accepted and there is absolutely no ground to remand the case to provide further opportunity to the revisionist to produce evidence.
12. Now coming to the merits of the case, the first argument of the learned counsel for the revisionist is that he is real owner of the house. It is contended that the land was purchased by the revisionist, but the sale deed was got executed in the name of the opposite party in the circumstances explained by him in the written statement ; that the house was also got constructed by him. Site plan was also got sanctioned by him and on the front of the house 'Jain Bhawan' has been written. That all these facts shows that he is the real owner of the house.
13. Regarding it, the first argument of Sri A. K. Gupta, learned counsel for the opposite party is that plea of benami is not open to the revisionist, according to Section 4 of the Benami Transactions (Prohibition) Act, 1988. Clause (1) of Section 4 deals with the suits and Clause (2) with the defence in he suits. It reads as under :
"(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property."
14. In view of this section, the defence that the opposite party is benami of the house and revisionist is real owner is not open to the opposite party. Learned counsel could not show as to how this case is covered under the exception given in Clause (3) to the above section.
15. Secondly, it has been argued that no document was filed in the court below in support of the defence. There is no document to show that the sale consideration was paid by the revisionist or he got sanctioned the site plan or he has spent money on the constructions. As against this, there is statement of opposite party and Mohan Lal P.W. 2 which is unrebutted.
16. Accordingly, I find that it cannot be accepted that the revisionist is the real owner of the house and the opposite party is only benamidar.
17. Lastly, it has been argued by Sri Vimlesh Srivastava, learned counsel for the revisionist that there is no evidence that the house was ever given on rent ; that there is no rent deed and no rent receipt has been produced. There is no entry in the Nagar Nigam that the revisionist is in possession of the house as tenant. This argument of the learned counsel cannot be accepted. There is unrebutted statement of the opposite party and Sri Mohan Lal. Their statements have not been challenged in the cross-examination and no evidence was produced in rebuttal. The notice of the opposite party was not replied. Therefore, the learned trial court rightly believed the unrebutted evidence of the opposite party.
18. I do not find any ground to interfere in the judgment and decree of the trial court.
19. The revision fails and is hereby dismissed.