Om Prakash and Another vs IIIrd Addl. District Judge and Others

R.H. Zaidi, J.—By means of this petition filed under Article 226 of the Constitution of India, petitioners challenge the validity of the order dated 381999 whereby the revision filed by the contesting respondent No. 3 was allowed and the order dated 1511993 passed by the Judge, Small Cause Court was set aside.

The facts of the case are that the respondent No. 3 filed S.C.C. Suit No. 52 of 1989 for ejectment of the petitioners/ tenants from the accommodation in dispute and also for recovery of arrears of rent and damages for use and occupation. Despite service of the notice, the petitioners did not appear to contest the suit as such trial Court ordered to proceed ex pane against them. Ultimately the respondent No. 2, by judgment and decree dated 1.8.1990, decreed the suit ex. pane against the petitioners. It was stated that the petitioners had no knowledge of the said exparte decree, as soon as they came to know about it, they filed an application for setting aside the exparte decree on 2181990. The said application was objected to and opposed by the respondent No. 3 claiming that the petitioners failed to comply the provisions of Section 17 of the Provincial Small Cause Courts Act and failed to deposit the decretal amount etc. in the Court. A report was called from the office. The office reported that the amount of Rs. 6,160/ towards arrears of rent, Rs.220/ towards expenses and Rs.80/towards expenses of the notice were due. Thus, the total amount to be deposited by the petitioners was Rs. 6,460/. Besides it, the petitioners were also required to deposit Rs.480/ per month towards mesne profits and future rent, a copy of the report has been annexed as Annexure 4 to the writ patition. The petitioners applied for depositing the said amount. The petitioners were granted time for depositing the amount, which was deposited in time. Thereafter, the respondent No. 2, by judgment and order dated 1511993, set aside the exparte decree dated 181990. Challenging the validity of the said order, a revision was filed by the contesting respondent No. 3, which was allowed by the Court below by its judgment and order dated 381999 whereby the order dated 1511993 of the trial Court was set aside. Hence, the present petition.

Learned Counsel for the petitioners vehemently urged that the whole amount which was required to be deposited under Section 17 of the Provincial Small Cause Courts Act was deposited with the permission of the Court. Therefore, the ex pane decree dated 1 81990 was rightly set aside. The Court below^fias acted illegally and without jurisdiction in allowing the revision and setting aside the order dated 1511993.

On the other hand, the learned Counsel appearing for the contesting respondent has supported the validity of the decree. It was urged that from the material on the record, it is apparent that the amount, which was required to be deposited under Section 17 of the Provincial Small Cause Courts Act, was not deposited by the petitioners, therefore, the order dated 151 1993 was rightly set aside by the Court below.

I have considered the submissions made by learned Counsel for the parties and also perused the record.

As stated above, only an amount of Rs. 6,460/ was required to be deposited, which was admittedly deposited by the petitioners with the permission of the Court. Therefore, there was no justification for the Court below to set aside the order dated 1511993 passed by the trial Court. Learned Counsel appearing for the contesting respondent failed to show from the record of the case that any other amount was required to be paid by the petitioners which was not paid, therefore, the Court below has acted illegally in allowing the revision and setting aside the order dated 1511993.

In view of the aforesaid facts, this writ petition succeeds and is allowed. The impugned order dated 381999 passed by the respondent No. 1 is hereby quashed. The case is pending since 1989,therefore, I think it proper to direct the trial Court to proceed and decide the suit expeditiously,