B.K. Rathi, J.@mdashThe property in dispute is house No. Sa-1/133. Mohalla Pandeypur Khajur City and district Varanasi. The respondent No.
3 alleging him to be the landlord filed suit against the petitioner for eviction and for recovery of arrears of rent being S.C.C. Suit No. 119 of 1983.
The eviction was sought on the ground of default in the payment of rent. The suit proceeded under Order XVII, Rule 2, C.P.C. and was decreed
on 28.8.1990 by judgment. Annexure-2 to the writ petition by Judge Small Cause Court, Varanasi. Against the judgment the petitioner preferred
S.C.C. Revision No. 145 of 1990 u/s 25 of the Provisional Small Cause Courts Act. That revision has been dismissed on 16.3.2001 by Judgment
Annexure-1 to the writ petition. The tenant has. therefore, approached this Court invoking the extraordinary jurisdiction of this Court under Article
226 of the Constitution of India.
2. I have heard Sri Sankatha Rai. learned counsel for the petitioner. Sri Ravi Kant, learned counsel for the respondent No. 3, landlord and the
learned standing counsel.
3. Learned counsel for the petitioner has raised several points before me in this petition. Firstly, it is contended that the trial court has committed an
error in proceeding under Order XVII, Rule 2, C.P.C. The learned counsel has taken me through the order sheet of the case, Annexore SA-1 and
the provisions of Order XVII, Rule 2. C.P.C. and contended that it has no application in the present case. That it applies only in the case where a
party fails to appear on the adjourned date of hearing. According to the Explanation added in 1976 by amendment if substantial portion of the
evidence of any party has already been recorded and such party fails to appear on that date, the Court may proceed under this Rule. It Is
contended that according to Rule 3. Rule 2 does not apply in a case where the Rule 3 apply.
4. I have considered the arguments of the learned counsel. As said above, the suit was filed in the year 1983. The trial court has discussed in detail
the conduct of the petitioner during the disposal of the suit. The revisional court has also considered the same. It appears from the judgment of the
revisional court that on every date, the petitioner was seeking adjournments. His statements was already recorded, but he did not appear for
further cross-examination. He was able to drag the suit from 1983 to 1990 and the revision from 1990 to 2001. i.e., for eleven years inspite of
efforts of landlord for early disposal. About twenty years have passed since the filing of the suit and the judgment of the court below show that all
attempts were made by the petitioner to delay the disposal of the suit as well as the revision. He did not appear for further cross-examination and
part evidence having been recorded, and therefore, the courts below have rightly proceeded under Order XVII, Rule 2. C.P.C.
5. Next it is contended that there was no relationship of landlord and tenant between the parties. The petitioner was never a tenant of the house in
dispute. It is not disputed that originally the house in dispute was owned by Smt. Bhagirathi. Smt. Mangara Devi. daughter of Smt. Bhagirathi, was
married with the petitioner. After the marriage, the petitioner started living in the house of the Smt. Bhagirathi, i.e., he was living in the house of the
mother-in-law. That therefore, there is no question of tenancy and he was not tenant and only a licencee. However, it is alleged that Smt. Mangara
Devi was a lady of bad character and, therefore, she left the house of the petitioner and married with some other person. There was also a
compromise divorce between the two. Thereafter, the petitioner has also remarried. It is contended that Smt. Bhagirathi Devi executed a sale deed
of the house in dispute in favour of her daughter. Smt. Mangara Devi. The respondent No. 3 purchased the said house from Smt. Mangara Devi.
Therefore, he claimed himself to be the landlord.
6. The petitioner has nowhere claimed that he is in adverse possession of the house. On the other hand, he claimed that he was living in the house
in dispute as son-in-law of Smt. Bhagirathi Devi. That at no point of time he became the tenant of the house nor he ever paid the rent.
7. Both the courts below have considered these facts in detail and recorded a finding that the house was sold by Smt. Bhagirathi Devi, to her
daughter. Smt. Mangara Devi. Smt. Mangara Devi remarried with some other person and she was living with him in another residence. Naturally
she would not have allowed the petitioner to stay in the house in dispute as licencec and, therefore, the courts below have accepted that the
petitioner occupied the house in the capacity of the tenant. On the basis of this circumstance and evidence, it was held that the petitioner was.
therefore, tenant of Smt. Mangara Devi. This concurrent finding of both the courts below cannot be interfered with in this petition.
8. In this connection, it is also contended that in any case there was no attornment in favour of the respondent No. 3. It is also argued that the
courts below have accepted that Rs. 200 was given as a rent by the petitioner to the respondent No. 3 and attornment has taken place. Learned
counsel for the petitioner has read over the entire plaint, Annexure-3 to the writ petition and it is argued that in para Nos. 2 and 3 of the plaint, it
has been pleaded that the attornment has taken place, but there is no allegation regarding the payment of Rs. 200 as rent by the petitioner to the
respondent No. 3. It has been argued that the courts below have erred in accepting this fact without any pleading. Learned counsel in support of
the argument has referred to Maqboolunnisa v. Mohd. Saleha Quarishi AIR 1999 SC 331. In this case, the Apex Court has held that the evidence
against the pleadings should not be allowed.
9. Regarding this, the argument of the learned counsel for the respondent No. 3 is that the material facts are required to be pleaded in the plaint
and evidence is not to be pleaded. Thai in para No. 2 of the plaint, it has been clearly pleaded that the petitioner attorned in favour of the
respondent No. 3. That the evidence is regarding the attornment and the statements of the witnesses have been referred to. who have stated that
there was an altornment of the tenancy by the petitioner in favour of the respondent No. 3 and he paid Rs. 200 as rent. Besides the respondent
No. 3 this fact has also been stated by Charnan Ram Gupta and Keshari Kumar, P.Ws. 2 and 3 respectively. It is contended that this evidence
was considered in detail by the trial court as well as by the revlsional court and the concurrent findings of fact cannot be interfered in this petition.
That it is more so, because there is no evidence in rebuttal produced by the petitioner.
10. It is also contended by the learned counsel for the petitioner that Chaman Lal. P.W. 2 witness of tenancy of Shiv Prasad, petitioner with Smt.
Mangara Devi but he has stated that he docs not know as to when the tenancy was settled. This fact is also not material. The rent was paid before
him and, therefore, his statement that the petitioner was tenant of Smt. Mangara Devi can be believed even though the tenancy was not agreed in
his presence. I, therefore, find that there is no reason to interfere in the findings of the courts below that the petitioner was tenant of the respondent
No. 3.
11. The next argument of the learned counsel for the petitioner is that according to para 2 of the plaint, Annexure-3 to the writ petition, the tenancy
came in existence from July, 1982. That there was no allotment order and, therefore, the tenancy was illegal and the suit for eviction is not
maintainable as has been held by the Full Bench in the case of Nootan Kumar v. IInd Additional District Judge. 1993 (2) ARC 204.
12. This argument of the learned counsel docs not require a long discussion. According to the landlord, he purchased the house on 21,7.1982. It is
alleged that the petitioner was tenant in the house since long and previously he was the tenant of Smt. Mangara Devi. There was attornment of the
old tenancy in the year 1982 in favour of the respondent No. 3. The petitioner was, therefore, an old tenant and was in possession since long
before 1976, therefore, the above decision has no application. Apart from this, it was not pleaded in the courts below, and this point cannot be
raised for the first time in this petition.
13. It is also contended that there was dispute of title and an application was moved before the revisional court that the plaint should be returned
for presentation before the appropriate court u/s 23 of Provincial Small Cause Courts Act. However, that application was rejected and the revision
has also been dismissed. That the revisional court has, therefore, erred in not returning the plaint u/s 23 of the Act as the dispute of title is also
involved. That validity of the sale deed has also been challenged. Regarding this, it may be mentioned that the application for return of plaint was
also moved before the trial court which was rejected by the trial court. Against that order, revision No. 365 of 1985 was preferred which was
dismissed by the District Judge. Thereafter. Writ Petition No. 12730 of 1986 was preferred in this Court which was also dismissed on 4.9.1987.
Therefore, the point whether the plaint should be returned u/s 23 of the Act has been finally decided between the parties. The revisional court,
therefore, rightly refused to return the plaint u/s 23 of the Act. No other point has been pressed before in this petition.
14. After considering the argument of the learned counsel, I am of the view that the writ petition is without merit. It is, therefore, dismissed.