HUKUM KHAN Vs. IST ADDL DISTT JUDGE NAINITAL

JUDGEMENT

(1.) THIS petition under Article 226 of the Constitution is directed against the order of the Judge, Small Causes Court, Nainital, dated 6 -11 -1981 and the order of the 1st Additional District Judge, Nainital, dated 10 -5 -1982, affirming the order of the Judge, Small Cause Court in revision.

(2.) HUKUM Khan Petitioner filed a suit against Saidullah Khan for ejectment and recovery of arrears of rent from the building in dispute in the Court of the Judge, Small Cause Court, Nainital. On 1 -6 -1981, the trial Court passed an ex -parte decree against Saidullah Khan, Respondent. In pursuance of the ex -parte decree the Petitioner -landlord got the Respondent evicted from the building in dispute and obtained possession of the same on 2 -7 -1981. The Respondent filed an application under Order IX Rule 13 of the Code of Civil Procedure on 4 -7 -1981 before the trial Court for setting aside the ex -parte decree dated 1 -6 -1981 and he further made an application on that very day under Section 17 of the Provincial Small Cause Courts Act seeking permission to furnish security for the decretal amount on the allegation that the summons in the suit had never been served on him and he had come to know of the ex -parte decree on 2 -7 -1981 when he was dispossessed from the building. On that application the trial Court passed the following order:

(3.) LEARNED Counsel for the Petitioner urged that the provisions of Section 17 of the Provincial Small Cause Courts Act, 1887 are mandatory and its strict compliance is necessary. The Court had no jurisdiction to set aside the ex parte decree without there being full compliance with the proviso to Section 17 of the Act. Counsel for the Respondent urged that substantial compliance of the proviso to Section 17 was sufficient and no strict compliance is necessary under the law. Both the Counsels cited a number of authorities in support of their contention. We do not consider it necessary to refer to these authorities in detail or to refer the same as in our opinion, having regard to the facts and circumstances of the case it is not necessary to adjudicate upon the question raised by the Counsel.