BRIJ LAL Vs. VIII ADDL D J

JUDGEMENT

(1.) A. B. Srivastava, J. Since counter-affidavit and rejoinder affidavit, have been exchanged between the parties in this writ petition, it is being disposed of at admission stage having heard the learned counsel appearing on behalf of both the parties.

(2.) EJECTMENT suit No. 18 of 1984 was filed by the landlord respondent No. 3 against the respondent No. 4 Amrit Lal and the petitioner Brij Lal with allegation that the tenant Amrit Lal has inducted has brother the petitioner in the tenancy without permission of the landlord. The ejectment was also sought on the ground of default, the suit was contested and was finally dis missed by the J. S. C. C. in revision, however, the District Judge on 7-12-1988 set aside the same and remanded the case for decision afresh after evidence on the question of rate of rent. After remand, the trial court fixed a date for hearing and informed counsel for the petitioner in the suit by means of a notice. The said counsel endorsed thereon that the notice may be sent to the petitioner, since no intimation was given by the counsel or the Court to the petitioner he could not appeal and the suit was decreed ex parte on 7-2-1990. An application under Order IX, Rule 13, C. P. C. was filed on behalf of the petitioner but no compliance was made by the counsel under Section 17 of Provincial Small Causes Court Act and the said application was dismissed. It is alleged that the petition on beaming about ex-parte decree filed a revision before the District Judge with application under Section 5 of Limitation Act. The learned Sessional Court by order dated 16-11- 1991 dismissed the revision as time barred. Aggrieved this petition.

(3.) RELIANCE on behalf of the petitioner has been placed on a decision of Supreme Court in Rafeeq and another v. Munshi Lal and another, AIR 1981 SC 1400. The said authority, however, does not help the petitioner in the nature of the facts of this case where no misdemeanour on the part of the counsel is established, rather the facts would go to show persistent default by the peti tioner himself. It is apparent from the facts found by the learned Additional District Judge that even after 23-1-1989 the case remained pending about an year, during which on 7-2-1990 an application was moved for setting aside the order to proceed ex parte which was rejected on merit by J, S. C. C. After ex parte decree was passed, an application for setting aside the same was made but no compliance of Section 17 was made. The contention that the non-compliance was due to misdemeanour on the part of the counsel is devoid of substance, because it was the party, not the counsel, which was required to furnish the amount or security for being deposited. Clearly therefore, default on the part of the petitioner on all stages was intentional and without any valid reason. The learned Additional District Judge was fully justified in rejecting his application for condonation of delay in filing the revision, and dismissing the revision as time barred.