This revision under section 25 of the Provincial Small Causes Courts Act, 1887 (‘Act’ in short) is directed against the judgment and decree dated 17-9-2008 passed by Sri P.P. Tiwari, Additiional District Judge/Small Cause Courts, Lucknow decreeing the SCC Suit No. 11 of 2006 for the ejectment of defendant as well as payment of decretal amount and damages for future use and occupation.

2.I have heard Sri V.P. Nagaur, learned counsel for the revisionist and Sri D.K. Shukla, learned counsel for the respondent.

3.Briefly stated facts are that Chandra Shekhar Gupta filed a Suit (SCC Suit No. 11 of 2006) for the ejectment and the arrears of rent alleging that he was owner and landlord of House no. M-1A, Gol Market, Mahanagar, Lucknow, Sri Ali Raza was tenant of the basement of the premises on a monthly rent of Rs. 2400/- and other taxes who died in the year, 1997, whereafter his wife Smt. Kammo approached the plaintiff to continue the tenancy. Consequently, fresh lease deed was executed on 12.10.1997 for a period of three years. Said period expired on 12.10.2000 but neither defendant approached for renewal of the tenancy nor she vacated the premises. From July, 2004 the defendant stopped payment of the rent. Tenancy started from first of every month to last day of the month. Provisions of U.P. Act No. 13 of 1972 were not applicable. Plaintiff served a notice dated 18.03.2005 demanding arrears of rent whereupon a sum of Rs. 6400/- was paid. By notice dated 31.12.2005 the tenancy was terminated on the expiry of 30th day from the receipt of the notice asking tenant to vacate the premises. Notice determining tenancy was served on 02.02.2006 which ultimately led to cause of action. Sum of Rs. 71,545/- was claimed as arrears of rent from July, 2004 to December, 2005. Moreover, ejectment of the tenant from premises in dispute was claimed. Further prayer for Rs. 4,000/- as damages from 03.02.2006 to 10.02.2006 and damages for future use at the same rate was also made.

4.Suit was filed on 15.03.2006. On 21.03.2006 defendant appeared and prayed for time for filing written statement mentioning that rent is being deposited under Section 30(1) of the U.P. Act no. 13 of 1972. On 17.04.2006 defendant prayed for further time for filing written statement whereupon 15.07.2006 was fixed. On 15.07.2006, defendant neither appeared nor filed written statement and sought adjournment which was strongly opposed by the plaintiff. Trial court, holding that neither written statement has been filed nor any deposit contemplated under Order XV Rule 5 CPC was made, struck off the defence of tenant and fixed 14.08.2006. On 14.08.2006, 04.09.2006 fixed. On 04.09.2006, an application under Order IX Rule 7 CPC was moved, whereupon objections were invited. This application was rejected on 30.10.2006 on merits.

5.Plaintiff led his evidence by examining himself as PW-1. On 13.02.2007 defendant moved an application under Order XIX Rule 1 CPC for cross-examination of plaintiff-witnesses which was allowed. Plaintiff was cross-examined on 23.04.2007. However, owing to absence of PW-2, the said witness was discharged by the plaintiff. On 23.07.2007, defendant moved an application for recalling PW-1 Chandra Shekhar for further cross-examination. This application was rejected on 23.07.2007.

6.Challenging the orders dated 23.07.2007, 30.10.2006 and 15.07.2006 defendant filed Writ Petition No. 3871 of 2007 in which initially an interim order was passed on 30.01.2007. However, petition was dismissed for non-prosecution of the petitioner and interim order was vacated. Application to recall this order is said to be pending for disposal.

7.Trial court after discussing the material on record, framed following points for determination:

(I) Whether plaintiff was landlord of the premises and defendant was tenant ?

(II) Whether defendant committed default in payment of rent ?

(III) Whether notice of determining tenancy was given and it was served upon defendant ?

8.Trial court after considering the

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