OM PRAKASH Vs. DISTRICT JUDGE BULANDSHAHR

JUDGEMENT

(1.) :- This is a judgment-debtor's petition under Art. 226 of the Constitution directed against the revisional order dated 27-8-1976 of the District Judge by which the landlords' revision was allowed, the order of the Judge, Small Causes Court, allowing the petitioner's restoration application was set aside and the restoration application itself dismissed.

(2.) The brief relevant facts are these : The suit was one for arrears of rent and ejectment from a shop. The first relevant date fixed was 6-9-1974. On that date an application was moved on behalf of the tenant-petitioner for time for payment of the admitted arrears. The court directed that Rs. 500.00 be deposited within 15 days and the rest on 13-12-1974, the next date fixed. On 13-12-1974 neither any money was deposited nor the petitioner appeared. The suit was, therefore, directed to proceed ex parte and the evidence of the plaintiff was recorded. The ex parte judgment was delivered on 17- 12-1974. An application under Order 9, Rule 13 C.P.C. was moved on 17-1-1975 with the allegations that the petitioner had been ill on 6-9-1974 and had sent his brother to the counsel, that the brother had come away after instructing the counsel allegedly with the advice that he should enquire about the next date later on. The petitioner claimed to have visited the counsel after some time and to have been told that he had to deposit the arrears of rent within 15 days but now he should do so on 13-12-1974. Further that on 13-12-1974 he again went to the courts in the afternoon but the counsel had left and the clerk told him that it was too late for deposit and that the counsel would get the money deposited on some other date. According to the petitioner he then came away and in spite of his enquiries the counsel did not inform him of the date and he learnt of the correct position after the Amin's visit on 15-1-1975 to execute the ex parte decree. This application was accompanied by an affidavit of the petitioner himself. The petitioner had also enclosed with the application the surety bond of one Shyam Lal but there was no application for permission to file security. The record further shows that a tender for the decretal amount had also been appended to the restoration application. The J.S.C.C. on the stay application moved the same day passed an order that the execution be stayed if the petitioner deposits the amount "as the decree-holder's counsel has no objection if it is deposited" The record shows that the whole decretal amount was deposited on 18-1-1975, the next day after moving the application. The Judge Small Causes Court noting that only an objection but no counter-affidavit had been filed and the fact that the petitioner was not aware of the date was a sufficient cause allowed the application on payment of Rs. 20.00. The District Judge in revision under Sec. 25 Provincial Small Cause Courts Act pointed out that the application was time barred by one day but the Judge Small Causes Court had not considered this aspect. Further that the Judge Small Causes Court had also not applied his mind to the question whether the petitioner had knowledge prior to 15-1-1975 and had only peremptorily observed that this lack of knowledge was a sufficient cause. Thereafter, the District Judge himself considered the allegations in the affidavit in the light of the dates fixed in the case and observed that but for carelessness and negligence on the part of the petitioner he would have learnt of the dates fixed in the case and the ex parte order and, therefore, the Judge Small Causes Court's finding about sufficient cause could not be accepted and the application must be held to be time barred and based on insufficient cause for non-appearance. The District Judge also observed that prior permission of the court for filing security had not been obtained. These findings have been challenged by this writ petition.

(3.) The record was summoned to ascertain if the question of security under Sec. 17 of the Provincial Small Causes Courts Act was really involved in the case. Now that it transpires that the decretal amount was deposited in cash on 18-1-1975 it is obvious that this question does not arise. The utmost that can be said about the effect of the deposit one day after the moving of the application is that the restoration application may be treated to have been moved on 18-1-1975. For all practical purposes this can make no difference because if the application of 17-1-1975 be treated to be based on sufficient cause and within time it would be nonetheless so even if it be deemed to be moved on 18-1-1975.