DINESH GOYAL Vs. CHIMAN LAL AGARWAL

JUDGEMENT

(1.) Heard learned Counsel for the applicant.

(2.) Landlord-Respondent filed S.C.C. Suit No. 63 of 2008 for ejectment and arrears of rent against tenant-applicant. Suit was decreed by means of ex parte judgment and decree dated 3.1.2009. Thereafter, an application dated 31.1.2009 under Order 9, Rule 13. Code of Civil Procedure was made for recall of the ex parte decree. Trial court vide order dated 9.2.2009 while entertaining the application under Order 9, Rule 13. Code of Civil Procedure stayed the execution of the ex parte decree subject to the conditions the applicant deposits 50% of the decretal amount in cash and furnish security for rest of 50%. The applicant deposited a sum of Rs. 55,000 on 13.9.2002 and submitted security bond for a sum of Rs. 55,000. An objection was filed by the tenant-applicant that total outstanding amount was to the tune of Rs. 2,66,815, the half of which comes to Rs. 1,33,410 and the applicant has only deposited Rs. 55,000 and furnished security for Rs. 55,000, thus the order has not been complied and the application was liable to be rejected for non-compliance of Section 17 of the Provincial Small Cause Courts Act. It was only thereafter the applicant moved another application that entire amount could not be deposited on account of the mistake of counsel and since he was not in a position to deposit the outstanding amount as such he may be permitted to give security for the entire balance amount of Rs. 5,65,000. The court below finding that applicant has failed to comply the provisions of Section 17 of the Provincial Small Causes Courts Act dismissed the application under Order 9, Rule 13, Code of Civil Procedure.

(3.) It has been contended by the learned Counsel for the applicant that court below has committed an error of law in ignoring the fact that applicant as per order dated 9.2.2009 had deposited 50% of the decretal amount in cash and furnished security for the rest of 50% and actually the amount which was required to be deposited could not be deposited due to advise and miscalculation by the counsel.