Lalji Saraf vs Surya Kumari and Others

Yatindra Singh, J.—Smt. Surya Kumari is the landlord of the shop in question. Sri Lalji Sarraf, petitioner is tenant at the rate of Rs. 31.25 per month. Respondent No. l filed a suit (J.S.C.C. Suit No. 115 of 1985) for ejectment and for recovery of arrears of rent. This suit was ultimately decreed exparte on 2071990. Petitioner filed an application under Order IX, Rule 13 on 2081990. The provision of Section 17 of Provincial Small Causes Courts Act was not complied with. This application was rejected on 1491990. Subsequently, the petitioner filed an application under Section 151 on 1771990 for recalling of the order dated 1491990. In this petitioner was permitted to deposit the entire money on 1521990. This was on the risk of the petitioner himself. The petitioner, ultimately, deposited Rs. 3,063.70 on 1731992. The application dated 1771990 under Section 151 was dismissed on 9111993. Petitioner thereafter filed a revision, which was dismissed on 771994. He filed this review, which was also dismissed on 16121994. It is true that the application to set aside exparte order, the provisions of Section 17 were not complied with. But later on they were complied with on 1731992.

In this Writ Petition following interim order was passed on 1211996.

ORDER

Petitioner is permitted to serve respondent No. 1 personally within three weeks from today and file an affidavit of service within this period. In addition to it, he shall also take steps to serve respondent No. 9, by registered post within one week from today. List it for admission in the week commencing 18th March, 1996. Respondent No. 1 may file counteraffidavit by the date fixed.

Till the next date of listing the petitioner shall not be evicted from the premises in dispute in pursuance of the impugned orders provided the petitioner deposits entire decretal amount with respondent No. 2 within three weeks from today and further continues to deposit rent/damages at the rate of Rs. 100 per month. For the month of January, 19J6 petitioner shall deposit within three weeks from today and for ensuing months by 7th of each month.

In case any amount has already been deposited by the petitioner, the same shall be adjusted.

The amount thus deposited by the petitioner can be withdrawn by the respondent No. 1 without furnishing any security.

In case of default by the petitioner, this interim order shall stand automatically vacated.

Sd/Hon''ble Sudhir Narain, J. 1211996

The counsel for the petitioner states he has deposited the entire decretal amounts, the rent/damages and has now complied with the interim order. I think it would be in the interest of justice if the matter is sent back and the application of the petitioner to set aside the exparte order dated 2081990 is considered on merit.

This Court while granting the interim order had fixed the rate of rent/damages at the rate of Rs. 100 per month. Sri P.N. Saxena, counsel for the petitioner has stated that Rs. 100 per month may be from 121996 till 3151999. He has further stated that the rent/damages of the shop from 161999 will be Rs. 200 per month. His client will not have any objection against the same.

The Writ Petition is allowed with these observations. The impugned orders dated 1491990, 9111993, 771994 and 16121994 are hereby quashed. The matter is sent back to the trial Court, who would consider the application dated 2881990 on merits. The matter may be decided at an early date. This unilateral enhancement from the petitioner will not in any way prejudice the mind of the Court while deciding the case on merit or fixing damages except for the fact that the future damages will not be less than rupees 200 per month. Petition allowed.