KHURSHEED Vs. 1ST ADDITIONAL DISTRCIT JUDGE MORADABAD

JUDGEMENT

(1.) -This is a petition under Article 226 of the Constitution of India. A suit no. 23 of 1981 was filed by Vipin Mehra, respondent no. 3, against the petitioner in the Court of Judge Small Causes Court, Moradabad. The respondent no. 3 is the landlord and the petitioner is alleged to be the tenant of the disputed property. The suit was filed for ejectment and for arrears of rent. The suit was fixed for final hearing on 7-12-1982. On that day the suit was decreed ex parte on the ground that the petitioner did not appear before the Court. On 10-12-1982, just after two days, an application was made for setting aside the ex parte decree under Order 9 Rule 13 CPC. The ground alleged was that the petitioner was not well on 7th December 1982 and as such he could not appear in the Court on the date fixed for hearing of the suit.

(2.) AFTER making the application for restoration on 10th December, 1982, the petitioner made an application on 20th December, 1982, under the proviso to section 17 of the Provincial Small Cause Courts Act for permission to furnish security for the performance of the decree as required by section 17 of the Provincial Small Cause Court Act, (hereinafter referred to as 'the Act'). The application for permission to furnish security came up for orders on 4th of January, 1983. On that very date the Court granted the petitioner permission to furnish security. The petitioner furnished security on that very date. The security was verified and accepted by the Court on that date.

(3.) HIS second contention is that the petitioner was actually ill on the date when the suit was taken up for hearing. He had obtained a medical certificate but the medical certificate was not filed because of the advice given by the learned counsel, and as such the view taken by the Courts below on the ground whether sufficient cause had been made out or not, is wholly arbitrary and is liable to be set aside.