RAEES AHMAD SHAH Vs. TARA CHAND KESARWANI

JUDGEMENT

(1.) THE short question arising for determination in this Civil Revision filed under section 25 of the Provincial Small Cause Courts Act, 1887 (Act for short) is whether the applicant had complied with the requirements of the proviso to Section 17 (1) of the Act so as to entitle him to have the ex-parte decree passed against him set aside and to have the suit restored to its original number. A few facts relevant for determining the question may be noticed.

(2.) THE applicant is defendant in a suit filed by the opposite party for recovery of arrears of rent and damages for use and occupation and for possession over the premises in dispute. THE suit was decreed ex-parte on 7-1-1981. On 16-2-1981 the applicant filed an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree and for restoring the suit to its original number. This was the last date of limitation for moving the application. On this very date the applicant also moved an application under Section 17 of the Act seeking Courts direction regarding furnishing of security in respect of the amount due under the decree. THE Court instead of giving direction regarding security on this date ordered issue of the notice to, the plaintiff-opposite party fixing 11-3-1981 for hearing. THE notice could not be served upon the opposite party and, therefore, the date of hearing was adjourned to 5-5-1981. On the adjourned date objection was filed by the opposite party to the furnishing of security by the applicant ; the case of the opposite party was that there was no occasion to furnish security and that the applicant must deposit the amount in cash. THE court agreed with the objection raised by the opposite party and directed the applicant to deposit the amount due under the decree in cash by 5-7-1981. 5-7-1981 being Sunday and the applicant deposited a sum of Rs. 8,400/- in cash on 8-7-1981. On 30-10-1981 when the application came up for final disposal it was pressed on behalf of opposite party that the applicant had failed to comply with the requirements of the aforementioned proviso within the prescribed time and, therefore, his application under Order 9 Rule 13 was liable to be rejected. This objection found favour with the Court below and accordingly it dismissed the application. Aggrieved by this decision, the defendant has approached this Court through the present revision.

(3.) THE proviso which requires interpretation in this case reads as follows