KHALIL Vs. III ADDL. DISTRICT JUDGE, HARDOI

JUDGEMENT

(1.) This writ petition has been filed impugning the orders passed by opposite parties No. 1 and 2 contained in Annexures 10 and 8 to the writ petition. Appearance has been put in by opposite party No. 3 Sri Afsar Hussain Zaidi in person. He has also filed a counter-affidavit.

(2.) The question involved in the petition is a short one and the parties have agreed that the petition may be disposed of finally at this stage.

(3.) Opposite party No. 3 had filed a suit for recovery of arrears of rent and eviction of the petitioner. The suit appears to have been decreed ex-parte. The petitioner then applied for setting aside the ex-parte decree under Order 9 Rule 13, C.P.C. Since the suit was decided by the judge Small Cause Court, compliance of Sec. 17 of the Small Cause Courts Act was required to be made. It appears that though the application was moved for setting aside the ex-parte decree, but there was delay in compliance with the provisions of Sec. 17 of the Small Cause Courts Act. The applicant moved an application under Sec. 5 of the Limitation Act for condoning the delay in compliance with the provisions of Sec. 17 of the Small Cause Courts Act. The application of the applicant under Order 9 Rule 13, C.P.C. was rejected by the Judge Small Cause Court (Munsif West), Hardoi by means of order dated July 22, 1985 on the ground, amongst others, of non-compliance of Sec. 17 of Small Cause Courts Act. While disposing of the matter, he also observed that so far the question of delay was concerned, it could not be condoned in the circumstances of the case. The petitioner than filed a revision before the District Judge, which was rejected by III Additional District Judge by means of order dated July 7, 1986. The revisional court has also found that there was no strict compliance with Sec. 17 of the Small Cause Courts Act. However, on the question of delay in making the compliance, the learned Additional District Judge has observed that "there was no provision for condonation of delay in furnishing security as the application under Order 9 Rule 13, C.P.C. for Small Cause Court is not maintainable". The learned counsel for the petitioner has placed reliance upon a case reported in AIR 1977 Allahabad, page 390. The relevant discussion is in para 11 of the said judgment wherein it has been observed that Sec. 5 of the Limitation Act, 1963 would be applicable. In view of the decision of this court in the case mentioned above, the revisional court erred in observing that there was no provision for considering the question of condonation of delay in compliance with Sec. 17 of the Small Cause Courts Act. This amounts to failure to-exercise the jurisdiction vested in the court.