Ram Hari Kripal and Another vs Kamlawati

Shishir Kumar, J.—Heard learned Counsel for the petitioners.

This writ petition has been filed for quashing the order dated 7.7.2006, passed by the learned District Judge, Annexure-12 and judgment and order dated 18.5.1987, Annexure-6, order dated 6.10.2005, passed by the Judge, Small Cause Court, Kanpur, Annexure-8 and order dated 25.7.2009, passed by Judge, Small Cause Court, Kanpur Nagar (Annexure-14).

There is a house No. 123/496 (new number} 123/89, Fazalganj, Kanpur Nagar. The father of petitioner No. 2 was a tenant of two small rooms having paying rent of Rs. 6 per month. He died in 1983. A suit was filed by the respondent landlord that was decreed ex parte in the year 1987. The finding was recorded while passing the ex parte order that service was sufficient. The registered notice was refused "and after due publication, no body appeared, therefore, the ex parte decree was passed. This decree was passed on 18.5.1987, filed as Annexure-6 to the writ petition. No order for setting aside the ex parte order was passed. It was only after a period of 17 years, an application u/s 17 of the Judge, Small Cause Court Act for setting aside the ex parte order was filed. Simultaneously, petitioners have also filed a revision, which was dismissed on 7.7.2006, filed as Annexure-13 to the writ petition. The courts below after considering the application filed under Order IX, Rule 13 of C.P.C. has recorded a finding that registered notice was refused and it was published in the newspaper but inspite of the publication, petitioners have not appeared and there is no compliance of Section 17 of Judge, Small Causes Courts Act, which is a mandatory requirement. The application was rejected. A revision was filed, that has also been dismissed.

Various points have been raised and decisions have been cited by the learned Counsel for the petitioners. The learned Counsel for the petitioners placed reliance on various judgments in Dullan Prasad Vs. Smt. Rajeshwari Bibi, Smt. Mohammadi and Ors. v. Smt. Abna Begum and Ors. 1985 ALJ 838; Kallu Mal v. Ch. Bikramajit Singh AIR 1983 All 13 and Hukam Khan v. 1st Additional District Judge, Nainital and Ors. 1983 ALJ 737.

The learned Counsel for the petitioners submit that in view of the provision of Section 17 of the Act, if an application has been filed depositing some amount, in that case, if it is not a sufficient deposit, inspite of the aforesaid fact, the Court cannot reject the application on that basis. As admittedly, the amount deposited by the petitioners was Rs. 3.977. Therefore, the Court should have condoned the delay and should restore the case for decision on merits. The further argument has been made that the requirement of Section 17 of the C.P.C. is not mandatory, it was directory. Another points raised by the learned Counsel for the petitioners is that in view of the notification issued in the year 1985, this area was declared as slum area having controlled by the Nagar Nigam, therefore, the respondent not being a landlord, the suit itself was not maintainable.

After considering the submissions made on behalf of petitioners and after perusal of the record, it is clear that petitioners deliberately have evaded the service and deliberately have not appeared before the Court inspite of publication of the notice and anyhow manipulated to remain in possession of the property in question from 1987 which is a date of ex parte decree till making an application in 2004 for setting aside the ex parte decree. It is also to be noted that admittedly the decretal amount according to the ex parte decree was much more than the amount deposited by the petitioner while making an application for setting aside the ex parte order. There is no dispute with the effect that compliance of Section 17 of the C.P.C. is mandatory. The Apex Court in Kedar Nath v. Mohan Lal Kesarwani and Ors. 2002 (1) JCLR 291 : 2002 (1) AWC 502 (SC), has held that if compliance is not made, the application is not maintainable and is liable to be dismissed.

In the present case also, admittedly, the petitioner has not made a compliance strictly in accordance with Section 17 of the Act. Further, it is to be noted that petitioners were pursuing two remedies, (i) by way of filing a revision before the revisional authority and was also pursuing the remedy (ii) by way of filing an application under Order IX, Rule 13 of the C.P.C. The revision itself was dismissed by the order dated 7.7.2006 and that order has become final and it was never challenged by the petitioners. In such circumstances, the courts below or the prescribed authority has got no jurisdiction to pass an order in favour of the petitioners. The petitioners deliberately wanted to linger on the proceeding this way or that way only to retain the possession of the property in dispute, that too on very meagre amount of Rs. 6 per month as stated by petitioners in the writ petition. The contention of the petitioners to this effect that suit itself is maintainable cannot be accepted at this stage. Admittedly, the petitioner has not raised this point or taken these points before the prescribed authority. It was first time taken in the revision, therefore, the Court has rightly not considered the same.

In my opining, this writ petition is a misconceived petition by a person who has deliberately retained the possession for 21 years inspite of the fact that a decree of ejectment is against the petitioner. In such circumstances, the writ petition is dismissed imposing a cost of Rs. 20,000 which is payable by the petitioner to the Mediation and Conciliation Centre, High Court, Allahabad within a period of two months from the date of the production of a certified copy of this order. In case, the amount is not paid, the District Magistrate, Kanpur Nagar is directed to recover the said amount as arrears of land revenue to be paid to the Mediation and Conciliation Centre, Allahabad High Court. The District Magistrate, Kanpur Nagar is further directed to inform this Court regarding compliance of this order by filing an affidavit within three months from today.