Sayeed Ahmad vs Addl. District Judge,Ghaziabad & Ors.

Heard the learned counsel for the parties.

By means of this petition filed under Article 226 of the Constitution of India, petitioner prays for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 2071998 whereby the suit filed by the respondent No. 3 for ejectment and recovery of arrears of rent was decreed expane by the trial Court, the order dated 25101999 whereby the application under Order IX, Rule 13, C.RC. was dismissed by the respondent No. 2 and the order dated 108 2000 whereby the revision filed by the petitioner against the order dated 25101999 has been dismissed by the Revisional Court.

It appears that the respondent No. 3 filed a suit for ejectment'' and recovery of arrears of rent against the petitioner. The said suit was contested by the petitioner. However, he has failed to comply with the provisions of Order XV Rule 5, CRC. consequently, the defence of the petitioner was struck off by the order dated 2391977. Challenging the validity of the said order, a revision was filed before the Revisional Court, which was also dismissed on 2071979. Aggrieved by the orders passed by the Courts below, Writ Petition No. 7279of 1979 was filed by the petitioner, which was ultimately allowed by this Court by judgment and order dated 1 28 1 980. Thereafter, it has been stated that the case was transferred from Hapur to Ghaziabad as Hapur subsequently came under the territorial jurisdiction of District Court, Ghaziabad. It has been alleged that the petitioner had no knowledge about the pendency of thesuit in the Court of respondent No. 2. The said suit was ultimately decreed exparte by judgment and decree dated 1471998. The petitioner, as soon as he came to know about the said decree, filed an application for setting aside the exparte decree on 1271999 under Order IX Rule 13 C.RC.

The said application was objected to and opposed by the contesting respondent No. 3, pleading that the petitioner had full knowledge of the pendency of the suit at Ghaziabad, but he deliberately absented from the Court with a view to delay the disposal of the suit, therefore, the application filed by the petitioner was liable to be dismissed. The said application was ultimately dismissed by the respondent No. 2 by judgment and order dated 25101999. Aggrieved by the said order, a revision was filed by the petitioner before the Court below. The Court below also affirmed the findings recorded by the trial Court and dismissed the revision by its judgment and order dated 1082000, hence, the present petition.

Learned Counsel for the petitioner vehemently urged that the petitioner had no knowledge of the pendency of the suit in the Court of respondent No. 2. The Courts below have acted illegally in dismissing the application for setting aside the ex pane decree as well as the revision filed by the petitioner. The judgments and orders passed by the Courts below, therefore, were liable to be set aside.

On the other hand, learned Counsel appearing for the contesting respondent supported the validity of the impugned decree and orders. It was urged that the Courts below have recorded concurrent findings of fact that the petitioner had full knowledge of the pendency of the suit in the Court of respondent No. 2. The said findings are based on relevant evidence on record, therefore, the writ petition was liable to be dismissed.

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

The Courts below have recorded the clear and categorical findings of fact that the petitioner has been depositing the rent after getting the tenders passed from the Courts of respondent No. 2 in the suit in question. In paragraph, it has been observed by the Court below as under:

From the abovenoted facts, it is clear that the petitioner had full knowledge of the pendency of the suit in the Court of respondent No. 2. The second proviso to Rule 13 of Order IX, C.P.C. as amended by our High Court, reads as under

"Provided also that no such decree shall be set aside merely on the ground of irregularity in the service of summons if the Court is satisfied that the defendant knew, or but for his willful conduct, would have known, of the date of hearing in sufficient time to enable to him to appear and answer the plaintiff''s claim."

Even assuming that the petitioner had no knowledge of the suit being transferred from Hapur to Ghaziabad, the petitioner was in a position to ascertain the date fixed for hearing, as he had depositing the rent after getting the tenders passed from the Court of respondent No. 2. In view of the proviso added by our High Court under Rule 13 of Order IX, C.P.C., referred to above, the decree in question could not be set aside. I do not find any illegality or infirmity in the orders passed by the Courts below. The findings recorded by the said Court are all concurrent findings of fact, which are based on relevant evidence on the record. No case for interference under Article 226 of the Constitution of India is made out.

Learned Counsel for the petitioner, lastly submitted that some reasonable time may be granted to the petitioner to vacate the shop in dispute as for him, it will not be possible to search out an alternative accommodation immediately. Learned Counsel appearing for the respondent No. 3 has got no objection if 8 months time is granted to the petitioner to vacate the shop in dispute subject to the condition, the petitioner undertakes to vacate the shop in dispute and furnishes an undertaking in writing before the trial Court to that effect.

In view of the aforesaid facts, it is hereby directed that for a period of 8 months from today, the petitioner shall not be ejected from the shop in dispute subject to the condition, he furnishes an undertaking in writing before the trial Court within three weeks from today to the effect that he shall vacate the shop in dispute and deliver vacant possession of the same immediately on expiry of the aforesaid time or before that to the petitioner and further he pays the rent of the shop in dispute to the respondent No. 3 for the period he remain in possession of the shop in dispute. Subject to what has been stated above, the writ petition fails and is dismissed. Petition dismissed.