ISHAQ Vs. SECOND ADDL DISTRICT JUDGE MEERUT

JUDGEMENT

(1.) On 14. 4. 75 suit was filed by opposite party for recovery of Rs. 1200 which was contested by petitioner on various grounds. An appli cation was also filed under U. P. Debt Relief Act in consequence of which further proceedings were stayed. It is not clear whether said order was dis charged or vacated but the trial Court decreed the suit ex-parte on 29thaugust, 1978. It held that the petitioner had not turned up to contest the case in-spite of sufficient service of summons. As this order appears to have been served on petitioner on 20th October, 1979 he filed revision alongwith appli cation under Section 5 of Limitation Act, The revising authority found that there was sufficient cause for filing revision beyond time. Consequently it allow ed the application and condoned the delay. On merits however he dismissed the revision as the petitioner had not complied with requirement of Section 17 of the Provincial Small Causes Court Act. It was held that the petitioner, instead of complying with the said provision circumvented the law by filing revision challenging order passed by Judge Small Causes Court instead of filing an application for setting aside of ex-parte order. It is against these orders that petitioner has come to this Court. As regards order passed by revisional Court, it obviously laboured under misapprehension that by filing revision the petitioner was circumventing law. Against ex-parte order the remedy of petitioner was to file restoration applica tion for review for to challenge it by way of revision. All the remedies were available. It was for petitioner to choose anyone of them. He could not be forced to adopt one or abandon another. If the petitioner chose to file re vision he could not be accused of circumventing the law. Of course the scope in revision against ex-parte order was different than the scope in considering restoration application. In restoration the Court would have been required to examine whether petitioner was prevented from sufficient cause in not being present on the date of hearing but in revision he could challenge the correct ness of ex-parte order itself. If he would have chosen the first remedy then of course he would have been required to comply with Section 17 but if he filed the revision and challenged the ex-parte order on merits his revision could not be thrown for non- compliance of Section 17. This would have been sufficient to quash the revisional order and direct the Additional District Judge to decide the dispute afresh but after hearing learned Counsel for parties it is apparent that the order of Judge Small Causes Court passed on merits also cannot be maintained. Admittedly further pro ceedings in suit had been stayed on application of petitioner that he was an agriculturist and U. P. Debt Relief Act was applicable to him. It is not clear whether this order was discharged or vacated and if so whether petitioner was intimated about the date. In paragraph 4 of the petition it is stated that after stay of proceedings no process was issued nor any notice was served on peti tioner. Denial of it in paragraph 6 of the counter-affidavit is vague. It is alleged that petitioner had knowledge. But the allegation is not supported by any material or copy of order-sheet. Nor is the allegation of issuing of any process or notice after stay is specifically denied. The Judge Small Causes Court further appears to have committed an error of fact in observing that petitioner had not appeared or put in any contest. In the result this petition succeeds and is allowed. The orders passed by District Judge and Judge Small Causes Court are quashed. The Judge Small Causes Court is directed to decide the case on merits in accordance with law. There shall be no order as to costs. .