Hakim Singh vs Chunni Lal

@DELETEUPPERDATA

Pradeep Kumar Singh Baghel, J.—This revision has been preferred under section 25 of the Provincial Small Cause Courts Act, 1887 (for short, the "Act, 1887") against the judgment and order dated 6th September, 2007 passed by the Additional District Judge, Court No. 15, Agra in Misc. Case No. 9 of 2007, Hakim Singh v. Chunni Lal, whereby the application moved by the revisionist Under Order IX, Rule 13 of the Code of Civil Procedure, 1908 (for short, the "C.P.C.") has been rejected. The plaintiff/landlord, opposite party herein, instituted a suit, being SCC Suit No. 22 of 2006, Sri Chunni Lal v. Sri Hakim Singh, in the Court of District Judge, Agra for ejectment and arrears of rent in respect of the shop situated at 18/162, Fatehabad Road, new Taj View Hotel, Tajganj, Agra. Said suit was decreed ex parte on 1st February, 2007. The Court below has proceeded to pass the said ex parte order after recording a finding that the defendant/tenant, revisionist herein, had, in fact, knowledge about the pendency of the suit. It is stated that the defendant/revisionist had also filed Original Suit No. 182 of 2006 before the Civil Judge (Junior Division), Agra against the landlord, opposite party herein, for permanent prohibitory injunction in respect of the same shop. Said suit was dismissed on 16th January, 2007 by the Civil Judge (Junior Division), Agra, appeal against which has also been dismissed. It is stated that in the said appeal, for the first time, the defendant/revisionist came to know that SCC Suit No. 22 of 2006 was ex parte decreed on 1st February, 2007.

It is stated that on 27th February, 2007 learned Counsel for the tenant moved an application for inspection of records of S.C.C. Suit No. 22 of 2006 and thereafter on 7th March, 2007 he moved an application under Order IX, Rule 13, C.P.C. for setting aside the ex parte decree passed in S.C.C. Suit No. 22 of 2006. The tenant has also moved an application on the same date i.e., 7th March, 2007 under section 17 of the Act, 1887 and the said application was allowed. In compliance of the said order, it is stated that the defendant/revisionist had deposited Rs. 8,412/- in cash and the bank guarantee was furnished in respect of rest of the amount. The Court below, after exchange of pleadings, rejected the application of the defendant/revisionist filed under Order IX, Rule 13, C.P.C. by the impugned order dated 6th September, 2007 on the ground that the defendant/tenant had knowledge about the pendency of the suit.

I have heard Sri S.K. Kakkar, learned Counsel for the revisionist, and Sri P.N. Dubey, learned Counsel for the opposite party.

Sri Kakkar submits that admittedly summons were not received by the revisionist and the Court has admittedly deemed the service of notice as it was sent at a correct address. He further submits that the defendant/revisionist had no knowledge about the date of hearing, on which date the suit was decided ex parte. He further submits that the tenant has deposited the entire amount under section 17 of the Act, 1887. Sri Kakkar has placed reliance on a judgment of the Supreme Court in the case of Ramji Dass and others v. Mohan Singh 1978 ARC 496.

Learned Counsel for the opposite party Sri Dubey submits that the revisionist-tenant had knowledge about the suit which is evident from the statement of the Counsel for the revisionist itself.

I have considered the rival submissions advanced by the learned Counsel for the parties and perused the record.

From the perusal of the records it is evident that the summons were not received by the defendant/tenant although the Court has treated service as deemed to be sufficient in view of the fact that registered notice was sent at the correct address of the tenant

It is a trite law that the matter should be heard on merits if the applicant of Order IX, Rule 13, C.P.C. has not deliberately avoided his presence with ulterior motive. In the present case, the defendant has deposited the entire rent alongwith the application under section 17 of the Act, 1887. The Supreme Court in Ramji Dass (supra) has observed as under:

"An ex parte decree passed eight years ago was set aside by the Court which passed it and the order was confirmed in revision by the District Court. The High Court, in exercise of its powers under section 115, C.P.C., set aside on various grounds. After having heard Counsel, we are inclined to the view that, as far as possible, Courts'' discretion should be exercised in favour of hearing and not to shut out hearing. Therefore, we think that the order of the High Court should not have been passed in the interests of justice which always informs the power under section 115, C.P.C. We, therefore, set aside that order and also the ex parte decree. We direct the Trial Court to take back the suit on file and proceed forthwith to trial."

The Supreme Court in a long line of decisions has held that ex parte orders should be recalled to hear the matter on merits if it has not been a deliberate attempt to prolong the proceedings.

In view of the aforesaid judgment of the Supreme Court, the revision is allowed. The judgment and order dated 6th September, 2007 passed by the Additional District Judge, Court No. 15, Agra in Misc. Case No. 9 of 2007, Hakim Singh v. Chunni Lal, as is impugned in this revision, is set aside. The matter is remitted to the Court below to decide the suit on merits as expeditiously as possible. The Court below shall have the regard to the judgment of the Supreme Court in the case of Rameshwari Devi and Others Vs. Nirmala Devi and Others, , and Shiv Cotex Vs. Tirgun Auto Plast P. Ltd. and Others, , which deal with the prayer for adjournments. In can reject unnecessary adjournments in the light of law laid down by the Supreme Court.

The revisionist shall pay a cost of Rs. 7,000/- to the learned Counsel for the opposite party within a period of six weeks from today.