SMT. SABIRA BIBI Vs. ALLAH TALA AND OTHERS

JUDGEMENT

(1.) THE petitioner by the instant writ petition has prayed for issuing a writ of certiorari for quashing judgment and order dated 3 -8 -1995 passed by III Additional District Judge, Allahabad, by which the petitioner's revision has been dismissed, as also for quashing of the judgment and order dated 16 -11 -1994 passed by Judge, Small Causes, Allahabad by which the petitioner's application under Order 9 Rule 13 C.P.C. has been rejected. Certain relevant facts may be stated. A suit for arrears of rent and for ejectment was filed against the petitioner and respondents No. 2 to 5. The suit was filed in the year 1975. The litigation had a chequered history and ultimately the Judge, Small Causes Court, Allahabad decreed the plaintiffs suit by the judgment and decree dated 25.7.1990. The said judgment was challenged by the petitioner's brother by way of a revision No. 197 of 1990. In that revision the petitioner was impleaded as a party. The said revision was dismissed by the judgment and order dated 4.11.1991 passed by the District Judge, Allahabad. The petitioner claims that she had no knowledge of the suit and other proceedings. This averment of the petitioner thus is in respect of a period of 17 years through which the litigation was continued in one court or the other. It is not in dispute that the suit was being contested by petitioner's brother Rafiq Hasan. The petitioner's claim is that the petitioner came to Allahabad on 10 -2 -1992 to see her husband's sister Kanij Fatima who was then ill. It was during her stay in Allahabad that she learnt about the case and got the file inspected through her counsel. It was then that the petitioner came to know of the pendency of the ejectment suit filed by Sri Nijamuddin, Mutwalli of the waqf. It was then that the petitioner moved an application for setting aside the decree under Order 9 Rule 13 C.P.C. on 21 -2 -1992. This application was contested by the plaintiff waqf. The Judge, Small Causes Allahabad after considering the case of the petitioner as also the claim of the trust came to the conclusion that the petitioner had knowledge of the suit and other proceedings. It was also held that the petitioner's brother Rafiq Hasan is carrying on tailoring business and it is not established that he had any strained relationship with his sister. The court, therefore, found that no ground for accepting the claim of the petitioner that she had no knowledge before 10 -2 -1992 of the suit and other proceedings is made out. It was also additionally said that there was no compliance of the provisions of Section 17 of the Provincial Small Causes Court Act. The Judge, Small Causes dismissed the application on the above grounds. Aggrieved by the above order, the petitioner preferred a revision before the District Judge, Allahabad. The revision has been decided by III Additional District Judge, Allahabad after hearing the parties' counsel. The learned III Additional District Judge, Allahabad has rejected the petitioner's revision and upheld the findings recorded by the Judge, Small Causes, Allahabad. Learned III Additional District Judge, Allahabad had held that it is really surprising that real brothers and sisters, who had been contesting the suit from 1975, upto the level of the High Court, could not have had any occasion to talk to each other so as to not let the petitioner know of the pendency of the suit. Learned Additional District Judge has also categorically held that the petitioner had been having knowledge of the suit. The Revisional Court also upheld the finding of the Judge, Small Causes on the point of non -compliance of the provisions of Section 17 of the Provincial Small Causes Court Act. Learned Additional District Judge has held that the petitioner, as an applicant, should have deposited the decretal amount but she having not done so the provisions of Section 17 of Provincial Small Causes Court bar the application. It is against these two judgments that the present writ petition has been preferred.

(2.) I have heard the learned counsel of the petitioner as well as Sri M.A. Haseen, Advocate who has filed caveat on behalf of the landlord -respondent No. 1.

(3.) THE learned counsel of the respondent has submitted that the petitioner is the real sister of Rafiq Hasan. The petitioner has two other sisters. The suit was filed in the year 1975 and during the course of litigation for long 17 years the petitioner was repeatedly served at various stages and even after the suit was decreed an affidavit on behalf of the petitioner was filed by Rafiq Hasan in 1991 before the Executing Court. There are other circumstances also which have been considered by the courts below which go to establish that it could not possibly be believed that the petitioner did not acquire any knowledge of the suit or other proceedings. According to the learned counsel, the brothers and sisters, as has been held by the courts below, are having normal relationship and it is most unnatural to say that the brothers and sisters, who were contesting the suit, had no knowledge. As such, he says that the findings of the Judge, Small Causes Court as well as Revisional Court relating to the knowledge of the suit, which are factual in nature, cannot be made a ground of attack in this writ petition. The learned counsel has further pointed out that under the provisions of Section 17 of the Provincial Small Causes Court Act, the decretal amount has to be deposited by the applicant because she being applicant she has to fulfil the requirement of the Section 17. The word 'applicant' does not include anyone else other than the petitioner. As such the finding of the courts below on the question of bar created by Section 17 of the Provincial Small Causes Court Act is also in accordance with law.