Narain Chandra Gorain vs Amulyadhan Banerjee and Another

B.P. Jha.

This civil division petition is against an order dated 25th January, 1986. By the impugned order the Court rejected an application filed by the petitioner under Order 9 Rule 13 of the CPC (hereinafter to be referred to as ''the Code'') on the ground that it is not maintainable. The court was of opinion that in view of section 14(1) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, (hereinafter to be referred to as ''the Act'') a civil revision will lie against a final order passed u/s 14(8) of the Act.

Learned Counsel for the petitioner contends that in view of section 14 (7) of the Act the procedure as laid down under the Provincial Small Cause Courts Act (hereinafter to be referred to as the Small Courts Act) because that Act will be applicable, to the trial of eviction case falling u/s 11(1) (c) and (e) of the Act.

It is relevant to quote section 14 (7) of the Act which runs as follows :

Notwithstanding anything contained in the Code of Civil Procedure, 1908 (V of 1908) or any other law; the Court while hearing a suit under this section shall follow the practice and procedure of a Court of Small Causes including the recording of evidence."

It is also relevant to quote section 17 of the Small Courts Act, which runs as follows:--

(1) The procedure prescribed in the Code of Civil Procedure, 1908, shall, save in so far as is otherwise provided by that Code or by this Act, be the procedure followed in a Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits :

Provided that an applicant for an order to set aside a decree passed ex-parte or for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed.

(2) where a person has become liable as surety under the proviso to sub-section (1), the security may be realised in manner provided by section 143 of the Code of Civil Procedure, 1908.

On a persusal of section 17 of the Small Courts Act it is clear that an aggrieved party can file a petition under Order 9 Rule 13 of the Code for setting aside an ex parte decree. Hence, it is contended by Learned Counsel for the petitioner that he is entitled to file a petition under Order 9 Rule 13 of the Code.

Learned Counsel for the opposite party contends that it is not an ex parte decree in the sense of Order 9 Rule 6 of the Code. To this extent, Learned Counsel for the opposite party is correct. The procedure for ex parte hearing has been laid down under Order 9 Rule 6 of the Code.

In the present case, the petitioner did not appear in spite of service of summons. Learned Counsel for the petitioner challenges the correctness of this finding.

It has been laid down u/s 14 (4) of the Act that if a tenant does not appear on the basis of service of summons-whether by ordinary mail or registered post then the case will be heard and disposed of on the basis of the allegations in the plaint.

For harmonious construction of section 14 (4) and section 14 (7) of the Act, the irresistible conclusion is that the Court is required to follow the procedure laid down under the Provincial Small Cause Courts Act as well as the procedure as laid down u/s 14 (4) of the Act. If it is so, then the defendant-tenant has a right to file an application under Order 9 Rule 13 of the Code. If it is so, the court erred in law in holding that the application under Order 9 Rule 13 of the code is not maintainable.

Learned Counsel for the opposite party contends that after final judgment the petitioner ought to have moved Civil Revision petition u/s 14 (8) of the Act. It is true that the petitioner could have moved a civil revision u/s 14 (4) of the Act but the petitioner is not estopped frow filing an application under Order 9 Rule 13 of the Code. In my opinion, it can be done by the petitioner and the petition under Order 9 Rule 13 of the Code is maintainable.

It is also contended by Learned Counsel for the opposite party that if a petition under Order 9 Rule 13 of the Code is rejected, then an appeal will lie under Order 43 Rule 1 (d) of the Code. If a petition under Order 9 Rule 13 is rejected on merit, then certainly an appeal will lie under Order 43 Rule 1(d) of the Code, but in the present case the petition was summarily rejected [lillegible] holding that it is not maintainable, and, therefore, it was not appealable. In the result, the petition is allowed, the order dated 25th January, 1986, is set aside and the court below is directed to hear the petition under Order 9 Rule of the Code in accordance with law. The parties shall bear their own costs.