VISHWA NATH SINGH Vs. GOPAL KRISHNA SINGHAL

JUDGEMENT

(1.) A suit for ejectment, arrears of rent and damages was filed by the landlord plaintiff opposite party Gopal Krishna Singhal against the tenant Vishwanath Singh in respect of house No. C-1014, MIG. Ram Sagar Misra Nagar (Now Indra Nagar), Lucknow with the allegation that the defendant is tenant in the said premises since 15-2-1982 at a monthly rent of Rs. 450/- besides Rs. 20/- as water charges. The defendant fell in arrear of rent whereupon a notice dated 14-6-1982 was issued by the plaintiff through his counsel demanding arrears of rent etc. and terminating tenancy. This notice was allegedly served on 16-6-1982, but the defendant neither paid the arrears nor vacated the premises in question. The plaintiff thereupon filed a suit claiming a sum of Rs. 1440.32 as arrears of rent since 15-4-1982 to 16-6-1982 including water charges on the aforesaid rate and a sum of Rs. 1504.00 was claimed as damages. for use and occupation since 17-7-1982 to 22-10-1982, the date of filing the suit. The plaintiff also claimed that a decree for pendente lite and future damages till the actual delivery of physical possession be passed in his favour against the defendant and it was mentioned that the additional court-fee will be paid at the time of execution of decree. A prayer for awarding costs of the suit against the defendant was also made. This suit was filed in the court of District Judge, Lucknow and was registered as SCC Suit No. 46 of 1982. The learned District Judge, Lucknow directed issue of summons to the defendant fixing 14-12-1982 for final disposal, but transferred the case to the Court of VI Additional District Judge, Lucknow for disposal. The learned Additional District Judge on 14-12-1982, however, directed summons to be issued to the defendant fixing 27-1-1983 for filing written statement and 3-2-1983 for framing of issues. It would be relevant to mention that 27-1-1983 was not a working day being declared a holiday, and, as such, there was no question of defendant's putting appearance on said date. The defendant, however, could not attend court on 3-2-1983 as according to him he had fallen ill and was unable to attend court on that date. As none attended court on behalf of the defendant on 3-2-1983, the learned Additional District Judge, Lucknow directed the case to proceed ex parte against the defendant and fixed 4-2-1983 for recording ex parte evidence and on that date the suit of the plaintiff was decreed ex parte. The operative portion of the judgement and order reads us under :-

(2.) A decree was prepared on 16-2-1983 and it appears that without putting it on the notice board, the decree was signed by the learned Additional District Judge on that very date, i.e., 16-2-1983. Costs of the suit as assessed in the decree amounted to Rs. 1239.45. A perusal of the decree indicates that the suit of the plaintiff for ejectment, recovery of Rs. 1440.32 as arrears of rent and water charges and Rs. 1504.00 being damages along with pendente lite and future damages at the rate of Rs. 450/- plus Rs. 20/- water charges per month in respect of house in question was decreed against the defendant ex parte with ex parte costs. Court-Fee on the damages, pendente lite and future, was ordered to be paid on the execution side.

(3.) An application was moved by the defendant Judgement-debtor on 2-3-1983 under Order 9, Rule 13, C.P.C. which was registered as Misc. Case No. 5 of 1983. It was averred in the application that the defendant had come to attend the court on 27-1-1983, but on that date the Court was closed and on return he suffered from high temperature, cold and cough and so he was confined to bed and recovered from ailment on 20-2-1983. As he had grown weak, he could come to court on (sic) and on inquiry he came to know that the case has been decreed ex parte against him on 4-2-1983. It was, thus, prayed that the ex parte decree be set aside and the case be restored and decided on merits. Affidavit in support of this application was also filed by the defendant-applicant. Along with this application, a security bond paper No. Ka-7 was also filed, but the prayer for furnishing security instead of depositing decretal amount in cash was refused by the learned Additional District Judge vide order dated 3-3-1983 and he directed the defendant-applicant to deposit the entire decretal amount in seven days and only then admission or registration of the application under Order 9, Rule 13, C.P.C. will be considered and the said application was directed to be put up for further orders on 10-3-1983. The defendant moved another application on 4-3-1983 under S.17 of the Provincial Small Cause Courts Act indicating that the property mentioned in the security bond is free from all incumbrances, loan and any other liability and prayed that the court be pleased to accept security in compliance of S.17 of the Provincial Small Cause Courts Act. This application was ordered to be put on 7-3-1983 but on that date it was ordered to be put up for orders on 18-3-1983. In the meantime the defendant had also filed a tender of Rs. 3000/- for depositing cash security towards the decretal amount. The learned Additional District Judge was pleased to pass order on 8-3-1983 directing the Office to report by 9-3-1983 as to whether the entire decretal amount would be covered by the aforesaid tender of Rs. 3000/- submitted by the defendant-applicant. As per office report dated 9-3-1983, the decretal amount was Rs. 4183.77 Paise, and, as such, besides amount of Rs. 3000/- a further sum of Rs. 1183.77 by which cash security sought to be deposited fell short, was more to be deposited to cover the decretal amount. Considering this report, the learned Additional District Judge vide order dated 9-3-1983 directed the defendant to make good aforesaid deficiency in depositing the decretal amount. The defendant-applicant thereupon submitted a tender of Rs. 4184.00 for depositing cash security in respect of the decretal amount of Rs. 4183.77 as per office report dated 9-3-1983. The said tender was passed vide order dated 15-3-1983 by the learned Additional District Judge. The defendant-applicant deposited the said amount on 16-3-1983 in the State Bank of India and submitted the receipt before the Court on 18-3-1983 and on that date the learned Additional District Judge directed the restoration application to be registered, which was registered as Misc. Case No. 5 of 1983. And thus, accepting the aforesaid cash security furnished by the defendant-applicant, the learned Additional District Judge was pleased to direct notice to be issued to the plaintiff-decree-holder fixing 12-4-1983 for filing objection. The execution of the decree was also ordered to be stayed. The plaintiff decree-holder on receipt of notice filed objection to the restoration application on 12-4-1983, inter alia, pleading that the application for restoration and setting aside ex parte decree is not maintainable in law as the provisions of S.17 of the Provincial Small Cause Courts Act, 1887 have been violated. It was also pleaded in para 2 of the objection that the restoration application is not maintainable in law as the defendant has not deposited full decretal amount and wilfully violated the order of the court dated 10-3-1983. The learned Additional District Judge vide order dated 12-4-1983 dismissed the aforesaid application of the defendant judgement-debtor which was moved by him for setting aside the said ex parte decree under O.9, R.13, C.P.C. by holding it to be not maintainable on account of non-compliance of the provisions of S.17 of the Provincial Small Cause Courts Act. He accepted the contention of the plaintiff-decree-holder that the amount deposited by the defendant is less than the decretal amount inasmuch as the defendant has not deposited the amount decreed as damages, pendente lite and future, at the rate of Rs. 450/- per month plus Rs. 20/- as water charges up to the date of moving the application. The learned Additional District Judge also refused the prayer of the defendant-applicant for giving security in respect of the alleged amount in balance as according to him this prayer could not be accepted for the reason that, "firstly, the entire amount ought to have been deposited along with the application or within time extended by the court and not on any subsequent point of time and secondly, because there would be no justification for permitting to furnish security because if a person claiming himself to be tenant wants to remain in occupation he must pay the amount whatever is due which is substantially either rent or damages and he cannot be permitted to contest the proceedings or to remain in occupation if he is incapable of making payment." Aggrieved by this order the defendant-judgement-debtor preferred this revision and in pursuance of order passed by this Court on the interim relief application, the defendant-applicant has deposited in the trial Court all the amount due up to date by way of damages for use and occupation at the rate of Rs. 450/- together with Rs. 20/- as water charges per month and the execution of the decree has been stayed on the condition that the defendant shall continue to deposit a sum of Rs. 450/- together with Rs. 20/- as water charges every month. The plaintiff-decree-holder had moved execution application on 22-7-1983 and the additional Court-fees was paid on the pendente lite and future damages amounting to Rs. 525.50 on 22-7-1983. The defendant has deposited the amount of damages, pendente lite and future in the trial Court as per order of this Court. The plaintiff has also withdrawn the total amount so deposited amounting to Rs. 8649.00 vide refund voucher dated 22-2-1984. It is not disputed that the defendant is continuously depositing a sum of Rs. 470/- per month. In the present revision the order dated 12-4-1983 has been challenged by the defendant judgement-debtor.