AHMAD Vs. IIIRD A D J SHAHJAHANPUR

JUDGEMENT

(1.) THIS is tenants' writ petition. Landlady - respondent No. 3 Smt. Shanti Devi filed SCC suit No. 47 of 1984 against the tenants -petitioners before JSCC/Munsif, Shahjahanpur. The suit was filed for eviction on the ground of default. In the said suit an application for striking off the defence of tenants - petitioners was filed on the ground that they had not deposited the entire arrears of rent admitted by them on the first date of hearing. The said application of the landlady was allowed ex parte on 24 -4 -1986, as on that date tenant -petitioners had not appeared. Through the said order defence of the defendant - petitioner was struck off. Thereafter plaintiff's evidence was recorded, evidence was closed, arguments were heard and 28 -4 -1986 was fixed for judgment. On 28 -4 -1986 the trial Court found that landlady -plaintiff failed to prove her case inspite of the fact that suit proceeded ex parte. Suit was, therefore, dismissed through judgment and decree dated 28 -4 -1986. Against the said judgment and decree plaintiff -respondent Smt. Shanti Devi filed SCC Civil revision No. 73 of 1987. The revisional Court held that plaintiff had filed and application for amendment of the plaint seeking an amendment to the effect that rent was due from 4 -5 -1981 and not from 4 -5 -1984 and as the trial Court had not disposed of that application hence judgment and decree of the trial Court through which suit was dismissed was erroneous. Accordingly revision was allowed by District Judge, Shahjahanpur on 5 -5 -1988 judgment and decree dated 28 -4 -1988 was set aside and suit was remanded. After remand the trial Court by order dated 13 -1 -1989 allowed the amendment application of the plaintiff. Thereafter, tenant -defendant filed an application for permission to file written statement. The trial Court through judgment and order dated 20 -1 -1990 rejected the application of the tenants and refused to permit them to file written statement. Against the said order petitioners filed SCC revision No. 17 of 1990. IIIrd ADJ Shahjahanpur through judgment and order dated 5 -9 -1990 rejected the revision hence this writ petition.

(2.) THE revisional Court wrongly held that on 28 -4 -1986 suit was dismissed in default. On 28 -4 -1986 suit was dismissed on merit. Both the Courts below mainly placing reliance upon Mohd. Ali v. Indar Lal, 1983 (2) ARC 353, held that as order dated 24 -4 -1986 which had been passed before the suit was dismissed) was not challenged by the tenants in revision hence they could not question its validity and as by the said order their defence had been struck off hence they could not be permitted to file written statement.

(3.) IN the aforesaid authority of Mohd. Ali suit had been decreed EX PARTE and later restored. In the instant case suit was dismissed not in DEFAULT but on merit. The principle that on restoration of suit, interim orders revive applies only when suit is either dismissed in default or decreed ex parte and thereafter it is restored. This principle does not apply when suit is decided on merit and thereafter judgment is set aside by higher Court and matter is remanded. The Supreme Court in a recent authority reported in AIR 2004 SC 3992, V. Jacob v. S. Geevarghese, has held that after restoration of suit dismissed in default only certain types of interlocutory orders (like injunction order) revive and not all types of interlocutory order. Even otherwise the aforesaid authority is not more good law in view of later authority of Supreme Court reported in S.C. Jain v. A.D.J., AIR 1989 SC 1070, wherein it is held that the date fixed after setting aside of ex parte decree is the date of first hearing. In the aforesaid authority of Mohd. Ali suit was decreed ex parte. While applying for setting aside ex parte decree defendant could also pray for setting aside order of striking off the defence which he did not do. In the instant case suit was dismissed on merit hence there was no opportunity available to the defendant to challenge order of striking off the defence through revision.