LALJI SARAF Vs. SURYA KUMARI

JUDGEMENT

(1.) YATINDRA Singh, J. Smt. Surya Kumari is the landlord of the shop in ques tion. Sri Lalji Sarraf, petitioner is tenant at the rate of Rs. 31. 25 per month. Respondent No. l filed a suit (J. S. C. C. Suit No. 115 of 1985) for ejectment and for recovery of arrears of rent. This suit was ultimately decreed ex-parte on 20-7-1990. Petitioner filed an application under Order IX, Rule 13 on 20-8-1990. The provision of Section 17 of Provincial Small Causes Courts Act was not complied with. This application was rejected on 14-9-1990. Subsequently, the petitioner filed an application under Section 151 on 17-7-1990 for recalling of the order dated 14-9- 1990. In this petitioner was permitted to deposit the entire money on 15-2-1990. This was on the risk of the petitioner himself. The petitioner, ultimately, deposited Rs. 3,063. 70 on 17-3-1992. The application dated 17-7-1990 under Section 151 was dismissed on 9-11-1993. Petitioner there after filed a revision, which was dismissed on 7-7-1994. He filed this review, which was also dismissed on 16-12-1994. It is true that the application to set aside ex-parte order, the provisions of Section 17 were not complied with. But later on they were complied with on 17-3-1992.

(2.) IN this Writ Petition following in terim order was passed on 12-1-1996. ORDEr Petitioner is permitted to serve respondent No. 1 personally within three weeks from today and file an affidavit of service within this period. IN addition to it, he shall also take steps to serve respondent No. 9, by registered post within one week from today. List it for admission in the week commencing 18th March, 1996. Respondent No. 1 may file counter-af fidavit by the date fixed. Till the next date of listing the petitioner shall not be evicted from the premises in dispute in pursuance of the impugned orders provided the petitioner deposits entire decretal amount with respondent No. 2 within three weeks from today and further continues to deposit rent/damages at the rate of Rs. 100 per month. For the month of January, 19j6 petitioner shall deposit within three weeks from today and for ensuing months by 7th of each month. IN case any amount has already been deposited by the petitioner, the same shall be adjusted. The amount thus deposited by the petitioner can be withdrawn by the respon dent No. 1 without furnishing any security. IN case of default by the petitioner, this interim order shall stand automat ically vacated. Sd/-Hon'ble Sudhir Narain, J. 12-1-1996 3. The counsel for the petitioner states he has deposited the entire decretal amounts, the rent/damages and has now complied with the interim order. I think it would be in the interest of justice if the matter is sent back and the application of the petitioner to set aside the ex-parte order dated 20-8-1990 is considered on merit. 4. This Court while granting the in terim order had fixed the rate of rent/damages at the rate of Rs. 100 per month. Sri P. N. Saxena, counsel for the petitioner has stated that Rs. 100 per month may be from 1- 2-1996 till 31-5-1999. He has further stated that the rent/damages of the shop from 1-6-1999 will be Rs. 200 per month. His client will not have any objection against the same. 5. The Writ Petition is allowed with these observations. The impugned orders dated 14-9-1990, 9-11- 1993, 7-7-1994 and 16-12-1994 are hereby quashed. The mat ter is sent back to the trial Court, who would consider the application dated 28-8-1990 on merits. The matter may be decided at an early date. This unilateral enhance ment from the petitioner will not in any way prejudice the mind of the Court while deciding the case on merit or fixing damages except for the fact that the future damages will not be less than rupees 200 per month. Petition allowed. .