SANJAY MISHRA Vs. MAGAN PANDEY

JUDGEMENT

(1.) Heard Sri Sunil Kumar Srivastava, learned counsel for the petitioner and Sri Ramesh Chandra Agrahari, learned counsel for the respondents. Present petition has been filed for challenging the judgment and order dtd. 13/2/2023 passed by the Additional District Judge, Court No.18, Kanpur Nagar in Misc. Case No. 251 of 2020 (Sanjay Mishra @ Aashu Vs. Magan Pandey and others) arising out of SCC Suit No.99 of 2016 (Magan Pandey and another vs. Sanjay Mishra @ Aashu) whereby application under Order 9 Rule 13 C.P.C. for setting aside ex-parte judgment and decree dtd. 3/2/2020 has been rejected. Since, only legal question is involved in the present petition, therefore, with the consent of parties without inviting for affidavits, petition is being decided at the admission stage itself.

(2.) Learned counsel for the petitioner submitted that plaintiffs-respondents have filed S.C.C. Suit No. 99 of 2016 for eviction and payment of rent, which was ex parte decided vide order dtd. 3/2/2020. Against that, petitioner-defendant has moved an application under Order IX Rule 13 read with Sec. 151 of CPC on 29/2/2020, which was dismissed in default vide order dtd. 12/2/2021. After dismissal of the said application, petitioner-defendant has moved restoration application, which was allowed vide order dtd. 10/3/2022 with liberty to ensure the compliance of Sec. 17 of Provincial Small Cause Courts Act, 1887 (hereinafter referred to as Act, 1887). Thereafter, petitioner-defendant has moved an application on 6/4/2022 for compliance of Sec. 17 of Act, 1887. The said application was rejected vide order dtd. 13/2/2023 on the ground that while filing application under Order IX Rule 13 of CPC, he has not complied the Sec. 17 of Act, 1887 and in case treating that he has complied the Sec. 17 of Act, 1887, even though same was not the full compliance as full amount has not been deposited.

(3.) Learned counsel for the petitioner assailed the impugned order on two grounds; First of all, Court itself while allowing the restoration application, granted permission to ensure the compliance of Sec. 17 of Act, 1887, therefore, there is no occasion for the Court to reject the application for non compliance of Sec. 17 of Act, 1887. Secondly, in case of part compliance, petitioner-defendant may have been given liberty for remaining compliance to make the deficiency good. In support of his contention, he has placed reliance upon the judgment of Apex Court as well as this Court in the cases of Shyam Kumar Gupta & Ors. vs. Shubham Jain passed in Civil Appeal No.765 of 2023 arising out of SLP (C) No.2542 of 2023 and Smt. Sushma Agarwal vs. District Judge, Agra and 2 others passed in Matters Under Article 227 No. 4089 of 2018.