RAM PRATAP YADAV Vs. IIND A D J

JUDGEMENT

(1.) Suresh Chandra Sahu and Dinesh Chandra Sahu respondents No. 2 and 3 filed a suit for eviction and recovery of arrears of rent against petitioner claiming therein that they were the landlords and the petitioner was their tenant who had defaulted in payment of rent. The suit was registered as S.C.C. Suit No. 7 of 1984 on the file of J.S.C.C./Civil Judge, Fatehpur. The suit was decreed ex parte on 20.7.1984. After four days, i.e., on 24.7.1984, petitioner filed restoration application, copy of which is Annexure-2 to the writ petition. In the restoration application it was stated that service of summons of suit was never effected upon the petitioner and it was wrongly shown that he refused to accept the summons sent through registered post. It was also stated in the restoration application that previously Smt. Mithana Devi was the owner landlord of the house in dispute who agreed to sell the same to the tenant petitioner for Rs. 8,000 on 16.2.1976 and executed agreement for sale after receiving Rs. 6,000 as earnest money and that it was agreed through the said agreement that tenant petitioner would be entitled to get the sale deed registered within ten years after payment of Rs. 2,000 balance sale consideration, and that through agreement possession was also delivered to the petitioner (meaning thereby that with effect from the said date possession of the petitioner as tenant was changed into his possession under agreement for sale). Along with restoration application neither decreetal amount was deposited nor permission to file security was given. Thereafter on 29.9.1984 an application was filed by the petitioner along with delay condonation application. Copy of the said application is Annexure-2 to the writ petition. In the said application it was stated that there was no relationship of landlord and tenant and J.S.C.C. had no jurisdiction to hear and decree the suit and therefore it was not necessary to comply with the provisions of Section 17 P.S.C.C. Act requiring deposit of decreetal amount or furnishing of security, in case Court permitted the same before filing the restoration application. It was prayed through the said application that in case it was necessary to furnish security then petitioner might be permitted to furnish security and in case there was any delay in filing application for the said purpose then the delay should be condoned. The trial court on 19.1.1985, allowed the restoration application and set aside the ex parte decree. The trial court in the said order observed that question of title and jurisdiction was involved. Thereafter it was observed : "It will be too harsh to reject the application of the applicant on the ground that he did not comply with the provisions of Section 17 of Small Causes Act if really this decree was passed beyond jurisdiction." Thereafter it was held that if the suit was beyond jurisdiction and dispute of title was involved then applicant could not be compelled to comply with the provisions of Section 17 of the Act. Against the said order landlords respondents No. 2 and 3 filed S.C.C. Revision No. 19 of 1985. IInd A.D.J., Fatehpur on 28.5.1985 allowed the revision, set aside the order of the trial court dated 19.1.1985 passed in Misc. Case No. 2 of 1984 and rejected the restoration application. The revisional court held that on the basis of allegation made in the plaint, the suit was maintainable before J.S.C.C., hence application for restoration was not maintainable without compliance of provisions of Section 17, P.S.C.C. Act.

(2.) Learned counsel for the petitioner has not seriously disputed the proposition that even if defendant questions the jurisdiction of J.S.C.C. to pass the ex parte decree still he is required to comply with the provisions of Section 17, P.S.C.C. Act while filing restoration application. However, learned Counsel for the petitioner has vehemently argued that defendant was entitled to seek permission of the Court for furnishing security under Section 17 of the Act and for the said purpose he had filed the application on 19.9.1984 which should have been directed by the revisional court to be considered by the trial court.

(3.) In my opinion trial court could be directed to consider the said application only if it was maintainable. Learned counsel for both the parties have cited several authorities of this High Court on the scope of Section 17, P.S.C.C. Act. However, the matter stands concluded by the authority of the Supreme Court in Kedar Nath v. M. L. Kesharwani, 2002 (1) AWC 502 (SC) : 2002 (1) ARC 186, which has held the proviso to Section 17 P.S.C.C. Act to be mandatory. Part of para 9 of the said authority is quoted below :