MOHAMMAD NASEM Vs. THIRD ADDITIONAL DISTRICT JUDGE FAIZABAD

JUDGEMENT

(1.) This judgment shall dispose of both the writ petitions, as common question of law is involved. The short question which requires decision in these two writ petitions is the application of proviso to Section 17(1) of Provincial Small Cause Courts Act, 1887.

(2.) In writ petition No. 2801 (R/C) of 1983 an ex parte decree dated 17-3-81 passed by the Judge small cause courts, Faizabad for ejectment of the petitioner as also for arrears of rent with costs and pendentelite and future damages on payment of requisite court fees is in dispute. The petitioner filed an application for setting aside the ex parte decree on 2-7-81 and also depositedthe decretal amount. He, however, deposited costs etc. subsequently on 3-9-81. Objections to the tender were filed by the decree holder. The Judge Small Cause Courts vide judgment dated 22-9-82, copy of which is Annexure-5, relying upon proviso to Section 17 of the Act dismissed the application for setting aside the ex parte decree petitioner filed revision, which also met with the same fate and was dismissed on 16-5-83, copy of judgment is Annexure-4.

(3.) In writ petition No. 5077 (R/C) of 1981 the facts are somewhat similar. An ex parte decree dated 20-8-74 was passed for ejectment of the petitioner besides pendente lite and future damages at the rate of Rs. 30.00 per month till the delivery of possession. The defendant filed an application for setting aside the same under Order 9, Rule 13 CPC on 9-4-80 and also deposited the sum of Rs. 408.95 towards the decretal amount. Admittedly without depositing any amount towards rent and damages pendente lite along with the interest such an application could not be made. This application for setting aside the decree was also dismissed by judgment dated 14-1-81 vide Annexure-3, by Judge Small Cause Courts. Lucknow holding that the applicant did not comply with the provisions of Section 17 proviso one of the Act by not depositing the pendente lite and future damages, for use and occupation and dismissed the application accordingly. In revision as well as simillar view was taken by order dated 16-9-81 passed by III Additional District Judge, Lucknow, copy of which is Annexure-5.