AKTTARYAR KHAN Vs. AZHAR YAR KHAN

JUDGEMENT

(1.) This revision is directed against the judgment and order dated 7.12.1992 passed by the VIth Additional District Judge, Bareilly rejecting the defendants application for restoration of the suit to its original number and for setting aside the exparte decree dated 9.4.1992.

(2.) Briefly stated, the relevant facts are that on 8.10.1991 the plaintiff opposite party filed J.S.C.C. Suit No. 30 of 1991 for recovery of arrears of rent and damages and for ejectment of the defendants from the shop in dispute. The suit was filed in the Court of the District Judge and summons were directed to be issued to the defendants fixing 11.11.1991. Admittedly, the summons of the suit were personally served on the defendants No. 1 and 2. It appears that on 30.10.1991 the suit was transferred to the Court of VIIth Additional District Judge, Bareilly. On 11.11.1991, which was the date fixed in the suit, the defendants did not appear before the transferee Court nor did they file any written statement. The Court fixed 20.12.1991 for final hearing. It appears that on 20.12.1991 and on two dates thereafter the case could not be taken up- due to lawyers' strike or on account of the fact that the Court did have time and finally 9.4.1992 was fixed for final hearing. On the said date the Court found that despite personal service on the defendants they were neither present nor any written statement had been filed. Consequently the Court decreed the suit against the defendants under Order 8, Rule 10, Civil Procedure Code On 21.4.1992 the defendants filed an application purporting to be under Order 9, Rule 13, Civil Procedure Code read with Rule 89A of the General Rules (Civil). In this application it was stated that the defendants could not appear on 11.11.1992, which was the date fixed in the suit, as the defendant No. 1 was ill and the defendant No. 2 was out of station. It was also stated that the defendants were not aware of the transfer of the suit from the Court of the District Judge to the Court of the IIIrd Additional District Judge as no notice was sent to them either by the Court of the District Judge or by the transferee Court as required under Rule 80A of the General Rules (Civil). It was, therefore, prayed that the ex parte decree dated 9.4.1992 be set aside and the suit be restored to its original number and the defendants be given time to file their written statement. The plaintiff-opposite party filed objection to the defendants' application which was ultimately heard by the VIth Additional District Judge, Bareilly. Relying upon some decisions of our Court in which it has been held that compliance of the provisions of Sec. 17 of the Provincial Small Cause Courts Act was mandatory, the Court below found that the defendants had failed to comply with the said provisions of Sec. 17 of the Provincial Small Cause Courts Act and despite being served with the summons they had not filed any written statement and, therefore, rejected the defendants' application for setting aside the exparte decree dated 9.4.1992 and for restoration of the suit to its original number. Aggrieved, the defendant-applicants have filed the present revision before this Court.

(3.) I have heard Shri Tejpal, learned counsel appearing for the defendant- applicants and Shri B.B. Paul, learned counsel appearing for the plaintiff- opposite party at the admission stage and with the consent of the learned counsel for the parties the revision is being finally decided.