KUSUM DEVI Vs. RAM JI VERMA

JUDGEMENT

(1.) The respondent/landlord filed a suit for eviction and arrears of rent before the Small Causes Court at Gorakhpur being Case No. 20 of 2005 (Ram Ji Verma vs. Smt. Kusum). The suit was decreed ex parte by judgment and order dated 28 August 2006. The petitioner made an application dated 19 October 2006 in terms of Order 9 Rule 13 along with delay condonation application. During pendency of the application, the petitioner moved an application (Paper No.63-Ga) under Section 17 of the Provincial Small Causes Court Act, 1887(he Act, 1887) on 3 September 2011 seeking permission of the court to deposit the decretal amount as per the decree. The trial court rejected the application moved under Section 17 of the Act, 1887 on 4 August 2012. The petitioner made another application for recall of the order which was rejected on 16 August 2013. Aggrieved, the petitioner preferred a revision before the Additional District Judge, Court No.2, Gorakhpur being Revision No.19 of 2013 (Smt. Kusum vs. Ram Ji Verma) which was dismissed on 10 September 2014. Aggrieved, the petitioner is assailing the aforementioned orders in writ jurisdiction.

(2.) At the very outset, learned counsel for the petitioner has very fairly conceded that in view of the judgement rendered by the Supreme Court in Radhey Shyam and another vs. Chhabi Nath and others, 2015 3 ADJ 210 no writ would lie against a judicial order arising out of civil proceedings. Learned counsel for the petitioner would contend that the issue raised in the petition goes to the root of the lis, therefore, the petition be heard under Article 227 of the Constitution, further, the learned counsel for the petitioner would confine his argument within the parameter of the said Article. I, accordingly, proceed to examine the submission of learned counsel for the petitioner under Article 227 of the Constitution.

(3.) Submission of learned counsel for the petitioner is that the court below committed an error in rejecting the application under Section 17 of the Act, 1887 without deciding the delay condonation application filed along with the application under Order 9 Rule 13. It is, therefore, contended that the application under Order 9 Rule 13 could not have been decided being barred by time, unless the delay was condoned. Upon condonation of delay the application under Section 17 of the Act, 1887 would thereafter mature for disposal.