Judgment - Heard Sri S.K. Jain, Advocate for the petitioner, Standing Counsel for the respondent no. 1 and Sri Arvind Vashisth, Advocate for the respondent nO.2.

2. By the present writ petition the petitioner has prayed for a writ of certiorari quashing the order dated 28-03- 2006 passed by the respondent no. 1 (Annexure-7 to the writ petition).

3. Briefly stated, according to the case of the petitioner, respondent no. 21 Kishan Lal Arora is owner of House No. 61, Lunia Mohalla, Dehradun, of which the petitioner is the tenant of a part, which consists of two rooms, bathroom and Kitchen.

4. Briefly stated, a suit before the Small Causes Court being Suit NO.3 of 1993 Kishan Lal Arora Vs. Surendra Kumar Anand was filed before the Judge Small Causes Court, Dehradun claiming the arrear of rent under Section 20 (2) (a) of the U.P. Act No. XIII of 1972 since April, 1987.

5. Respondent no. 2 has submitted that the petitioner/tenant had stopped the payment of rent since 1987, hence on 07-12-1992 a notice under Section 106 of the Transfer of Property Act was sent to the petitioner, which was served upon the tenant on 11-12-1992. The details of the description of arrears, which were claimed by the respondent no. 2 in the plaint, are quoted below:

6. The petitioner has denied the aforesaid averments and has stated in his written statement that he has sent the rent to the landlord by Money Order @ 100/- p.m. for the month of October and November, 1992 and on his refusal, the same was deposited under Section 30 of the U.P.Act No. XIII of 1972. The oral statement of the parties was also recorded by the Court.

7. However, the SCC Suit NO.3 of 1993 Kishan Lal Arora Vs. Surendra Kumar Anand was dismissed on 02-07-1996 by the III Additional Civil Judge (Senior Division), Dehradun by observing that the petitioner is in arrears since April, 1987 @ Rs. 100/- p.m. Finding to that effect are quoted below:-

8. However, Judge Small Cause Court has dismissed the suit on the ground that there is no relationship of landlord and tenant on account of the fact that the petitioner has occupied the premises without any allotment order in view of the judgment of Nutan Kumar v. IInd Additional District Judge, Banda 1993 (2) ARC 204.

9. So far as the question of occupying the premises without the allotment order is concerned, in Mohd. Tawab Vs. ADJ (E.C. Act), Dehradun 1999 (2) ARC 748 it has been held that suit for eviction is maintainable even when there is no allotment in favour of the tenent. Relevant observations are quoted below:"41. Learned Counsel for the contesting respondents disputed the above proposition and submitted that there was, in the facts of the present case, no need to remand the same to the trial Court. He places reliance on the following decisions.

1. 1988 (2) ARC 45 (pr. 9) (S.D. Aggarwal, J.) Ram Milan Singh v. D.J. Basti & others).

2. 1992 ALJ 870 (Pr. 5) 1992 (2) ARC 193 (GP Mathur, J.) (Smt. Protima Chatterji v. Special Judge, Kanpur) 3. 1996ALJ 1221 (Pr.8) (pr. To 711) 1996 (1) A.R. C. 165 (SudhirNarain, J.)(B.N.S. Hajela v. "'rd Additional District Judge & others).

42. In the aforesaid decision, it has been held that once landlord-tenant relationship is admitted to the parties than tenant, cannot plead contrary and claim to be unauthorized occupant. Reference may be made to paragraph 5 of the judgment in the case of Protima Chatterji (supra) and then followed in the case of B.N.S. Hajela (supra).

43. The underlying idea and the logic of the Courts appears to be of consensus tollit e"orema, which means 'a man who does not speak where he ought to, shall not be heard later when he desires to speak. "

10. Against the order dated 02-07-1996, respondent no. 21 landlord has preferred a J.S.C.C. Revision No. 27/1996 and the petitioner 1 tenant has also filed a J.S.C.C. Revision No. 33 of 1996 challenging the finding of the trial Court to the effect that rate of rent is 400/- p.m.

11. Revision No. 27 of 1996 filed by the respondent no. 2 was allowed and re

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