KEDARNATH TUKARAM NIKAM Vs. PRATAPRAO KHANDERAO TAKARE

JUDGEMENT

(1.) This Revision Application has been directed against the order passed be10w Application Exhibit 20 in Misc. Application No. 132 of 1978 of the Court of Small Causes at Baroda.

(2.) The petitioner herein is a tenant and the opponent is the landlord. Rent Suit No. 538 of 1977 was filed by the present opponent landlord against the petitioner-tenant for the recovery of the possession of the premises on the ground of non-payment of arrears of rent for more than six months on the date of the Notice. The said suit proceeded ex parte on 26-4-1978 against the tenant and it was decided in favour of the landlord-present opponent. The petitioner-tenant was ordered to handover actual physical and peaceful possession of the demise rented premises to the opponent-landlord along with the arrears of rent electric charges and costs of the suit. The landlord-present opponent had filed execution Petition No. 291 of 1978 for the recovery of the possession and the arrears of rent alongwith costs and it appears that the possession of the said premises was recovered by the landlord from the tenant on 27-7-1978. It appears that the tenant had filed Misc. Application No. 132 of 1978 under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree and pending that application of the petitioner-tenant the opponent-landlord gave application Exhibit 20 for dismissing the Misc. Application No. 132 of 1978 given by the present petitioner-tenant. The second Additional Judge Small Causes Court Baroda who heard the said Application Exhibit 20 allowed the same and dismissed the main Application Exhibit 1 with costs. The petitioner-tenant against the said order has filed the present Civil Revision Application before this Court.

(3.) The trial Court has come to the conclusion that Misc. Application No. 132 of 1978 (Exhibit 1) is not maintainable as the procedure prescribed under sec. 17 of the Bombay Provincial Small Cause Courts Act 1887 has not been complied with. Section 17 of the said Act reads as under: