SAGIR KHAN Vs. D J FARRUKHABAD

JUDGEMENT

(1.) D. K. Seth, J. Leave is granted to; amend the cause title so as to convert this petition into one under Article 227 of the Constitution.

(2.) THE petitioner, as plaintiff, instituted Suit No. 18 of 1989 against the respondent No. 3, herein as defendant in the Court of Munsif City/judge Small Cause Courts, Farrukhabad, for ejectment on the ground of default in payment of the rent. By an order dated 3-10-1989 the said suit was ordered to be proceeded ex pane. Ultimately the suit was decreed ex pane on 11-1-1990. One Ghulam Rabbani filed suit No. 220 of 1990 against the plaintiff herein and the defendant-respondent No. 3 herein as defendants for declaration that ex pane decree dated 11-1-1990 is a nullity and void. In the said Suit No. 220 of 1990 the defendant-respondent No. 3 herein made an application on 8-9-1990, praying for time for filing written state ment. THE petitioner alleged that it was the defendant-respondent No. 3 herein who got the said suit No. 220 of 1990 filed through Ghulam Rabbani to avoid execution. After having found that the purpose would not be achieved through the said suit the respondent No. 3 on 2-4-1991 filed an application for setting aside ex pane decree under Section 17 (1) of the Provincial Small Cause Courts Act together with an application under Section 5 of the Limitation Act.

(3.) LEARNED counsel for the defendant-respondent No. 3 on the other hand contends that in view of the order dated 4-12-1992 which was not interfered with by the order dated 15-1-1993 passed in Writ Petition No. (sic) of 1995 and the obser vation made in the said order dated 15-1-1993 the defendant is entitled to deposit the said amount and, therefore the orders impugned are valid and legal, lie further contends that as soon the order is set aside by order dated 4-12-1991 the parties were reverted back to the same situation, namely, to square and and, therefore, the petitioner was entitled to present a fresh application under Section 17 of the Act upon compliance with the deposit. Since the deposits have been made though be latedly, therefore the same should be accepted as substantial compliance,