SMT. RANI BIBI AGARWAL Vs. ALOK AGARWAL

JUDGEMENT

(1.) HEARD Sri A.K. Gupta, advocate, learned Counsel for the applicant and Sri H.P. Pandey, learned Counsel for the defendant opposite party. The present revision has been filed under section 25 of the Provincial Small Cause Courts Act and is directed against the order dated 19th of August, 2009 whereby the Court below has allowed the application filed by the defendant opposite party under Order IX, Rule 13, C.P.C. and set aside the ex parte judgment and decree in the S.C.C. Suit No. 14 of 2007. The Trial Court has found that summons of the suit were not served on the defendant. The finding recorded by the Trial Court has not been seriously challenged by the learned Counsel for the applicant. The learned Counsel for the applicant submits only this much that since in pursuance of the ex parte decree, the plaintiff applicant has taken possession of the disputed shop, the order for restitution should not be passed. A suggestion was given by the learned Counsel for the applicant that during the pendency of the suit, the applicant shall pay a sum of Rs. 4,000/ - per month as the damages. The learned Counsel for the defendant opposite party submits that although the rent is Rs. 6,000/ - per month, but if the applicant pays the damages @ Rs. 4,000/ - per month and the suit is ordered to be decided on preferential basis within the time frame, the defendant will not pray for restitution of possession. In view of the agreement between the learned Counsel for the parties, the revision is disposed of in the following manner. So far as the order of the Court below allowing the application under Order IX, Rule 13, C.P.C. is concerned, this Court does not find any error therein. The said order is confirmed. The learned Counsel for the defendant opposite party claims that he will be filing written statement within a period of two weeks. The date for recording the evidence shall be fixed by the Trial Court. Sri A.K. Gupta, learned Counsel for the plaintiff -applicant gives an undertaking on behalf of the applicant that she will not seek any adjournment in the suit.

(2.) THE present revision is disposed of with the direction that the defendant applicant shall file written statement within a period of two weeks as stipulated above and thereafter the date for recording of evidence of the parties shall be fixed by the Court below. The Court below shall dispose of the suit on or before 16th of November, 2009. The plaintiff applicant shall deposit a sum of Rs. 8,000 towards the damages which shall be payable to the defendant opposite party for not claiming the restitution. The said damages may be deposited within a period of two weeks. By way of clarification it is added that the amount of damages has been fixed on the offer given by the learned Counsel for the applicant and will have no bearing to the issue about the rate of rent involved in the suit.