PRADEEP NARAIN SHARMA Vs. SATYA PRAKASH PANDEY

JUDGEMENT

(1.) By an order dated December 3, 1999, the learned District Judge, Varanasi, had decreed the S.C.C. Suit No. 15 of 1999 ex parte. In the said order, the rate of rent was found as Rs. 2,000 per month and that the revisionists defendants were defaulter for the period January, 1997 till March. 1999 and he accordingly directed payment of arrears of rent at the said rate. Mr. P. K. Ganguly, learned counsel for the revisionists contends that even if an ex parte decree is passed, the learned court has to apply its mind and it cannot accept the pleadings made out in the plaint as a gospel truth. Even in case of ex parte decree, the plaintiff has to prove his case and show that he is entitled to the relief sought for. From the judgment, it does not appear that the Court had applied its mind. On the other hand, it suffers from various infirmities as is evident from the order itself. He further contends that the Court had failed to comply with the provisions of Rule 10, Order VIII of the Code of Civil Procedure in that the said provision of the Code of Civil Procedure is applicable in a proceeding before the Court of Small Causes by virtue of Section 17 of the Provincial Small Cause Courts' Act, 1887, as applicable in Uttar Pradesh. He further points out that the date that was fixed was third date. On two earlier occasions, the defendant had appeared and had obtained adjournment for filing written statement. On December 3, 1999, again an application for adjournment was filed, which was rejected on the ground that the defendant had obtained time on two occasions earlier. According to him, said rejection was not justified. Inasmuch as the application for adjournment has to be rejected on its own merit and not on the ground that on earlier occasions, adjournment was obtained. On these grounds, he prays for setting aside the impugned order dated December 3, 1999.

(2.) Mr. A. K. Upadhaya, learned counsel for the opposite party, on the other hand, strongly opposes the contention of Mr. Ganguly. He contends that the Court was right in rejecting the application for adjournment since in the application itself, no sufficient ground was made out. According to him, even on the merit of the application for adjournment, the same could not have been allowed. He further contends that the Court had applied its mind, which is reflected in the order itself. The plaintiff was examined and his statement was believed. Therefore, there was no infirmity in the order itself. He further contends that even in the application in support of the present revisional application, the revisionists themselves had admitted that the rent was originally Rs. 2,000 per month. He has sought to make out a different case to the extent that the rent was Rs. 700 per month, which is altogether an afterthought. He further contends that the revisionists are not disputing that they were defaulter for the period mentioned above. Therefore, according to him, there is no infirmity in the order and the said order should not be Interfered with.

(3.) Mr. Ganguly, however, contends that the rent at the rate of Rs. 2,000 per month is not an admitted position in view of the subsequent agreement referred to in paragraph 7 of the said application and he also disputes the period of default.