MAHMOOD AHMAD Vs. SOHAN LAL MAJOR

JUDGEMENT

(1.) PERUSED the office report dated 10.9.2008. Notice had been issued to sole respondent. It has been returned back with endorsement "PUNCHH-TANCHH SE PATA NAHIN CHALA. WAPAS." Entire litigation has been contested from the address where notice had been sent, as such in this background, service of notice is presumed to be sufficient, and it is presumed that sole respondent has been duly served.

(2.) IN the present case J.S.C.C. suit was filed by the petitioner against the respondent for recovery of arrears of rent and ejectment. Suit was decreed ex-parte on 28.8.1995 and the decree was prepared on 6.9.1995. Application was filed by Sohan lal Major for recall for the aforesaid ex parte decree. Along with the same an application was also filed for giving permission to comply with the provisions as contained under section 17(1) of Provincial Small Causes Courts Act, 1972. On the said application permission was accorded to accept security on 4.12.1996 of F.D.R. dated 19.4.1994, whose maturity date was 19.9.1999, and it was specifically mentioned that said F.D.R. would not be, encashed except with the order of the Court. The said fixed deposit was encashed by Sohan lal without there being any order from the Court and in violation of the order of the Court dated 4.12.1996. On 22.12.2004 application was moved by Sohan lal, requesting that permission be accorded to furnish security. Said application was rejected on 24.2.2006 by asking to take action also. On 15.4.2006 again application was moved before the Executing Court with the same prayer. Said application was again rejected on 9.3.2007. Then again restoration was moved on 29.10.2007. On 23.2.2008 application 206-C was rejected. Revision preferred against the same has been disposed of. At this juncture present writ petition has been filed.

(3.) RECORD of the case has been perused. This is glaring case of misuse of ju­dicial process. On 4.12.1996 application 6-C was allowed for complying with the provisions of section 17 (1) of the Provincial Small Causes Courts Act, ac­cepting the judgment debtor's F.D.R. and imposing condition that same shall not be withdrawn except with the leave of the Court. Fixed deposit was fur­nished, and the most surprising feature is that without there being any order for return of the said fixed deposit, the tenant took back the said F.D.R. and got it encashed. On 23.12.2004, an application 186-C was moved for grant of permis­sion to furnished security. By giving cogent reasons that the said application was not competent and maintainable, order dated 24.2.2006 was passed. Again application was moved on 15.4.2006 for permission to furnish security. Said ap­plication has been rejected on 23.2.2008 by categorically mentioning that in the past similar application was rejected on 29.2.2006. In the present case, Revisional Court has totally misdirected itself and there is complete miscar­riage of justice, inasmuch as, at the admission stage itself, directives have been issued to hear application 206-C. Once on merit order had been passed that ap­plication 206-C was not legally sustainable and in past same has been rejected, the District Judge by no means could have given any such direction.