TRILOK SINGH Vs. JAMUNA DEVI

JUDGEMENT

(1.) THIS First Appeal from Order is directed against an order passed by the Ist Additional District Judge, Varanasi dismissing an application under Order IX Rule 13 C. P. C.

(2.) THE brief facts are these. A suit was filed by the plaintiff for the eviction of the defendant on the allegation that the latter' s tenancy had been determined and after such determination, he was not entitled to remain in occupation of the accommodation in his tenancy. Arrears of rent and damages for illegal use and occupation were also claimed. THE suit was decreed ex parte. THE defendant moved an application under Order IX Rule 13, C. P. C. for setting aside the ex parte decree. A preliminary objection was raised on behalf of the plaintiff that the said application was not maintainable in view of the fact that the suit was one of the nature of Small Causes and, therefore, Section 17 of the Provincial Small Cause Courts Act was applicable and in terms of the proviso to the said section, the defendant who was seeking to set aside the ex parte decree, was bound to deposit in the court the amount due from him under the decree or in pursuance of the judgment, or to give such security for the performance of the decree or compliance with the judgment as the court might, on a previous application made by him in this behalf would have directed. Since admittedly this was not done, therefore, the application under Order IX. Rule 13, C. P. C. was not maintainable the court below viz. the Addl. Dist. Judge, Varanasi upheld the said objection and rejected the application. Hence, the defendant has now come up in the instant appeal and in support and opposition thereof I have heard the learned counsel for the parties.

(3.) BEFORE dealing with the rival contentions raised at the Bar. I think, I should draw attention to the relevant statutory provisions. First, I shall notice the provisions of the Provincial Small Cause Courts Act. Section 4 defines Court of Small Causes in the following words : " 4. Definition. - In this Act, unless there is something repugnant in the subject or context " Court of Small Causes" means a Court of Small Causes constituted under this Act, and includes any person exercising jurisdiction under this Act in any such court." Section 5 provides for the establishment of Courts of Small Causes. Section 6 provides for the appointment of a Judge of such a Court of Small Causes. Section 15 occurring in Chapter III laid down as follows till it was amended by the U. P. Civil Laws Amendment Act 1968 : " 15 (1) A Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule as suits excepted from the cognizance of a Court of Small Causes by which the suit is triable. (2) Subject to the exceptions specified in that schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed five hundred rupees shall be cognizable by a court of Small Causes. (3) Subject as aforesaid, the State Government may, by order in writing, direct that all suits of a civil nature of which the value does not exceed one thousand rupees shall be cognizable by a Court of Small Causes mentioned in the order."