RAJESHWAR PRASAD Vs. DISTRICT JUDGE AND ANR.

JUDGEMENT

(1.) RAISING a short controversy, the present writ petition is at the instance of landlord who instituted SCC Misc. Case No. 7 of 1995 against the respondent No. 2, the tenant for recovery of arrears of rent, damages and ejectment on the ground of default. The suit was decreed ex -parte on 7.9.1995. An application to set aside ex -parte decree was filed by the respondent No. 2 -tenant on 18.10.1995. Since the suit was of small cause notice, an application under section 17 of the Provincial Small Causes Courts Act for permission to file 'security bond' was filed on 14.11.1995. The security bond was filed on 16.11.1995. The Trial Court rejected the application for setting the ex -parte decree on the short ground that no application for condonation of delay in filing respondent application was filed. Moreover, the security furnished by the tenant -respondent was beyond time. Feeling aggrieved against the aforesaid order, Civil Revision No. 256 of 1997 was filed by the respondent No. 2 which has been allowed by the impugned order dated 10.12.1997 on the ground that the defendant -tenant had virtually complied with the order of the Court and, therefore, there had been no serious lapses on the part of the defendant. Sri P.K. Jain, learned Counsel for the petitioner, in support of the writ petition, submitted that the Revisional Court exceeded in its jurisdiction in allowing the revision without addressing itself to the points involved in the revision. He invited attention of the Court towards para 8 of the writ petition wherein it has been stated that the security was not furnished within the time, even if the case of the defendant is that he got notice on 11.11.1995, the security was not registered, the security was furnished only for a sum of Rs. 9,000/ -whereas the decretal amount is more than Rs. 12,000/ - and there was no application for condonation of delay.

(2.) THE learned Counsel for the respondent disputed the aforesaid contention of the learned Counsel for the petitioner and submitted that all these points are no longer open to the petitioner as the Revisional Court has exercised jurisdiction vested in it in setting aside the order passed by the Trial Court whereby the application under Order 13, Rule 9, C.P.C. was rejected.

(3.) APART from the above, even if it is taken that in such matters, the Court should take a liberal view, the Revisional Court has exceeded in its jurisdiction in straightway setting aside the order passed by the Trial Court rejecting the application filed under Order 9, Rule 13, C.P.C. and also setting aside the ex -parte dated 7.9.1995. In any case, after recording the aforesaid findings, the Lower Court ought to have restored the matter to the Trial Court to decide the application filed under Order 9, Rule 13, C.P.C. The order of the Revisional Court is cryptic one and there is insufficient discussion in the judgment of the Revisional Court on relevant points which were involved before it.