JUDGMENT :

1. Heard Sri K.K.Arora, learned counsel for the petitioner and Sri Prakhar Tandon, learned counsel for the contesting respondents.

2. Both the matters arise out of same suit, therefore, are being heard and decided together by this common judgment.

3. The petitioner before this Court is tenant respondent in Small Causes Suit No. 193 of 2012, which came to be decreed dated 24.7.2019 for arrears of rent and ejectment.

4. The petitioner challenged the order of the Judge Small Causes before the Additional District Judge, Court No. 2 by instituting Small Causes Revision being No. 60 of 2019 which also came to be dismissed vide order dated 31st January, 2020 confirming the judgment of the Judge, Small Causes and hence this miscellaneous petition under Article 227 of the Constitution.

5. Present petitioner has also filed revision against the order passed by the Judge, Small Causes rejecting the application of the petitioner under Section 23 of Small Causes Courts Act, 1887.

6. The main arguments that were advanced by learned counsel for the petitioner can be summarized as under:

i. The petitioner having questioned the title of the land lord plaintiff qua property in question which is a residential house, the Judge Small Causes could not have decided the suit for arrears of rent and ejectment;

ii. While deciding point no. 1 the Judge, Small Causes, absolutely failed to take into account the pleadings raised in the written statement with regard to an agreement for sale between vendors of the plaintiff land-lord and the husband of the petitioner so as to appreciate her claim for acquiring possession by way of transfer and, therefore, her status as a tenant had changed entitling her to claim possessory rights in terms of Section 53-A of the Transfer of the Property Act, 1882; and

iii. The petitioner having already instituted a suit to declare the sale deed executed in favour of the land lord plaintiff dated 13.06.2011 to be null and void, the benefit under Section 23 of the Small Causes Act, should have been given to him and his application was wrongly rejected.

7. In support of his arguments, learned counsel for the petitioner relied upon the judgment of Bombay High Court in the case of Dharmaji @ Baban Bajirao Shinde v. Jagannath Shankar Jadhav, 1994 LawSuit (Bom) 3 and that of this Court in the case of A R C Overseas Private Limited v. Bougainvillea Multiplex and Entertainment Centre Pvt. Ltd. And Another, 2007 LawSuit (All) 1562.

8. Per contra, the arguments advanced by learned counsel for the respondent land lord are:

(i). Petitioner having not deposited rent even as per second part of Rule 5 (Allahabad Amendment) of Order XV of Code of Civil Procedure, 1908 (CPC) his defence was rightly struck off and this finding having not been assailed either in the Small Causes Revision or before this Court, the suit deserved to be decreed and revision petition was also rightly dismissed and so now these petitions also deserve to be dismissed; and

(ii) land lord had acquired valid title by virtue of sale deed dated 13.6.2011, executed by admitted owners, namely, Deepak Kumar, Gopal Das, through his power of attorney and Indra Kumar, successor in interest of Tikam Chand and the instrument of sale very much contained recitals to the effect that contesting petitioner was a tenant only and was in arrears of rent, therefore, vendee would be entitled to maintain a suit for ejectment by determining tenancy with issuance of notice under Section 106 of the Transfer of Property Act, 1888, for recovery of arrears of rent and ejectment;

iii. Petitioner failed to lead any evidence by producing original agreement for sale which was claimed so as to set up any prima facie right to hold possession and photocopy of the agreement for sale being secondary evidence was not admissible in absence of any admission at the end of plaintiff in that regard;

iv. Neither registered power of attorney dated 14.7.1998 was admitted to the land lord respondents nor, sale deed admit