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IN THE HIGH COURT OF ALLAHABAD
Gopi Nath, J.
GULVIR SINGH - Appellant
Versus
TARA CHAND - Respondents
Civil Revn. 1206 Of 1979
Decided On : 12/01/1981
ORDER XVII, RULE 3, CIVIL PROCEDURE CODE - APPLICABILITY - DEFENDANT'S PRESENCE IN COURT - APPEARANCE OR PARTICIPATION - ADJOURNMENT - REJECTION - JUSTIFICATION - ORDER XVIII, RULE 3-A, CIVIL PROCEDURE CODE - EXAMINATION OF PLAINTIFF - PERMISSION - VALIDITY - REVISION - GROUNDS - TRANSFER OF CASE - REJECTION - JUSTIFICATION.
Fact of the Case:
The defendant, a tenant, sought to challenge a decree for ejectment and recovery of arrears of rent passed against him by the trial court. The defendant argued that the trial court erred in proceeding under Order XVII, Rule 3, Civil Procedure Code (CPC), as he was present in court and had not failed to appear. He also contended that the court erred in allowing the plaintiff to examine himself and in rejecting his applications for adjournment.
Finding of the Court:
The court held that the defendant was present in court and had the opportunity to participate in the proceedings, but he chose not to do so. Therefore, the provisions of Order XVII, Rule 3, CPC were applicable. The court also found that the permission granted to the plaintiff to examine himself was valid and that the rejection of the defendant's applications for adjournment was justified.
Issues: 1. Whether the trial court erred in proceeding under Order XVII, Rule 3, CPC, as the defendant was present in court and had not failed to appear? 2. Whether the court erred in allowing the plaintiff to examine himself? 3. Whether the court erred in rejecting the defendant's applications for adjournment? 4. Whether the case was a fit one for transfer?
Ratio Decidendi: 1. The court held that the defendant was present in court and had the opportunity to participate in the proceedings, but he chose not to do so. Therefore, the provisions of Order XVII, Rule 3, CPC were applicable. The court relied on the Explanation added to Rule 2 of Order XVII, CPC by the Allahabad High Court, which states that the mere presence of a party in court is not sufficient to constitute an appearance for the purposes of Order XVII, Rule 3. The court also relied on the Full Bench decision in M. S. Khalsa v. Chiranji Lal, which held that Rule 3 of Order XVII applies where the party is present or is deemed to be present and has failed to do the acts mentioned in the Rule. 2. The court held that the permission granted to the plaintiff to examine himself was valid. The court relied on the provisions of Order XVIII, Rule 3-A, CPC, which allow the court to permit a party to examine himself at a late stage of the suit, giving its reasons for the same. The court found that the reasons recorded by the trial court in its order dated 20-10-1978 were cogent and detailed, and that the order did not suffer from any legal defect. 3. The court held that the rejection of the defendant's applications for adjournment was justified. The court found that the defendant had been granted several adjournments in the case and that he knew that the case was fixed for final hearing on 29-5-1979. The court also found that the defendant had not shown any sufficient ground for the adjournment.
Final Decision: The court dismissed the revision petition with costs and granted the defendant three months time to vacate the premises.
( 1 ) THIS is a defendants revision from an order passed by the II Additional District Judge, bulandshahr dated 29th of May 1979 decreeing the plaintiffs suit for ejectment of the defendant and recovery of a sum of Rs. 2748. 35 with pendente lite and future damages for use and occupation at the rate of Rs. 200/- per month from him subject to the payment of court-fee on the execution side.
( 2 ) THE defendant is the tenant of the accommodation in question, and the plaintiff is its landlord. The house is situate in Civil Lines, Bulandshahr. The defendant took it on lease in the month of november, 1976. According to the plaintiff, the rent agreed was Rs. 200/- per month. The defendant paid an advance of Rs. 200/- in November 1976, and paid no rent thereafter. The accommodation let out to the defendant consists of 2 living rooms, one store room one kitchen, latrine, bathroom, courtyard and verandah. It appears that relations between the parties became strained, and proceedings under Sections 107/117, Criminal P C. were drawn. The defendant was alleged to have made an assault on the plaintiff and caused hurt to him and his wife. The plaintiff served a combined notice of demand and termination of tenancy dated 27-10-1977 on the defendant. According to the plaintiff, U. P. Urban Buildings (Regulation of Letting. Rent and eviction) Act (XIII of 1972) did not apply to the accommodation in dispute. The defendant was alleged to have defaulted in the payment of rent for over an year. The defendant sent a reply to the notice stating that the rate of rent was Rs. 30/- per month and that he had paid rent till september 1977. Since the defendant did not vacate the premises after the expiry of the period of notice, the suit giving rise to this revision was filed for the reliefs mentioned above on the allegations that the defendant was a tenant of the accommodation at the rate of Rs. 200/- per month that he had defaulted in the payment of rent since November 1976, that a combined notice of demand and termination of the tenancy had been served on him; and that he had failed to vacate the premises or to pay the arrears.
( 3 ) THE defence delivered was that the defendant was inducted to tenancy by the son of the plaintiff named Sri R. S. Gupta at the rate of Rs. 30/- per month and that he had paid rent up to september 1977. It was further alleged that the plaintiff had agreed that the provisions of U. P. Act No. XIII of 1972 shall be applicable to the premises, and the defendant shall be entitled to the benefits thereof and that since the defendant had paid the entire rent till September 1977, he was not a defaulter.
( 4 ) THE trial court decreed the suit. It held that the defendant was a tenant of the plaintiff at a monthly rent of Rs. 200/- that he had paid no rent since November 1976, and arrears to the tune of 2748. 35 had accumulated against him that his tenancy was determined by a combined notice of demand and termination of tenancy; that Act No. XIII of 1972 was not applicable to the premises; and that the defendant was accordingly liable to ejectment from the premises and also to pay the arrears and pendente lite and future damages for use and occupation at the rate of Rs. 200/- per month.
( 5 ) THE suit was filed on 23-12-1977, and it was fixed for filing of the written statement on 10-2-1978. On that date, the defendant prayed for one months time to file the same. The court granted five days time to file the written statement, and it was filed on 15-2-1978. The case has a chequered history thereafter. After the written statement had been filed, the case was posted for framing of issues on 6-3-1978. It could not be taken on that date. The suit was transferred from the court of Judge Small Causes to the court of II Additional District Judge. and the issues were framed. The case was fixed for hearing on 31-5-1978. On that date, the defendant applied for adjournment for two months. The application was allowed. The case came up
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