RONALD ANGELO @ RAJU Vs. ARSHAD JAMAL WARSI

JUDGEMENT

(1.) The respondent/landlord filed a suit for arrears of rent and eviction before the Small Causes Court, Gorakhpur against the petitioner/tenant being Suit No.58 of 2008 (Arsad Jamal Warasi vs. Ronald Angelo). The suit was decreed ex parte by judgment and order dated 1 August 2012. The petitioner moved an application under Order 9 Rule 13 of Code of Civil Procedure on the ground that the petitioner did not receive any summon nor had any knowledge of substituted service of the notice. It was further contended that the petitioner had deposited the rent upto December 2012 in Misc. Case No. 21/1991 under Section 30 of Act No.XIII of 1972. The respondent'/landlord filed objection to the application under Order 9 Rule 13 stating that there has been no compliance of Section 17 of the Provincial Small Causes Court Act, 1887(the Act, 1887), hence, the application is liable to be rejected. The trial court rejected the application under Order 9 Rule 13 by the judgment and order dated 30 January 2014. Aggrieved, the petitioner preferred a revision being S.C.C. Revision No.2 of 2014 which was dismissed by the District Judge, Gorakhpur on 30 May 2014. Aggrieved by the aforementioned orders, the petitioner has approached this Court 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 the learned counsel for the petitioner is that it was clearly stated in para-6 of the application filed under Order 9 Rule 13 that the petitioner has deposited the entire rent due till December 2012 in Misc. Case No.21/1991. This fact was not verified by the court below while dismissing the application of the petitioner for non compliance of the terms of Section 17 of the Act, 1887. It is, therefore, contended that the courts below have erred in not enquiring as to whether the decretal amount deposited by the petitioner as stated in the application under 9 Rule 13 would satisfy the decretal amount. Merely, because the petitioner had subsequently moved an application under Section 17 to deposit the decretal amount would not mean that the petitioner was in default.