SHAILESH SUDHIR JOGLEKAR Vs. NIRMAL KUMARGULZARILAL JAIN

JUDGEMENT

(1.) Heard Mr. Bhangde, learned counsel for the Applicant. Respondent though served, none appeared for the respondent.

(2.) Civil Revision Application is directed against the judgment and order dated 26th February, 1999, passed by the Additional chief Judge, Small Cause Court, Nagpur, whereby the application moved by the respondent/non-applicant under Order 9, Rule 13 and under Section 144 of Code of Civil procedure is allowed and exparte decree passed in Civil Suit No. 558/91 was set aside. Similarly, against the appellate order dated 12-6-2001 passed by the Additional District judge, Nagpur, whereby the appeal filed by the applicant came to be dismissed. A]. Mr. Bhangde, learned counsel for the applicant has submitted that the applicant is the original landlord and the non-applicant was the tenant in the suit premises i. e. shop block No. 3, bearing House No. 293 situated at west High Court Road, Dharampeth, Nagpur. The applicant/landlord on 5-12-1990 filed application before the Rent Controller under clauses 13 (3) (iii) and (v) of the C. P. and Berar letting of Houses and Rent Control Order, 1949. On the basis of the said application, the case was registered as Revenue Case No. 726-A/71 (2) /90-91.

(3.) The counsel for the petitioners has further contended that on 15-1-1991 the rent Controller granted permission under above referred clause of the Rent Control Order and therefore, on 24-4-1991 the applicant/ landlord issued quit notice to the non-applicant. Since the non-applicant refused to vacate the premises in question, the applicant on 27-6-1991 filed a Civil Suit No. 558/91 in the Small causes Court, Nagpur, against the non-applicant for ejectment, possession and damages along with mesne profit. On 24-7-1991 the applicant served non-applicant by registered post with A. D. notice regarding filling of civil suit. The said notice was refused by the non-applicant and therefore, on 14-8-1991 the case was ordered to be proceeded exparte. On 28-9-1991 Civil Suit No. 558/91 was decreed exparte. The non-applicant was ordered to pay Rs. 216/- as damages by way of occupation charges with effect from 1-6-1991 to 26-7-1991. Learned counsel for the petitioner further contended that on 11 -7-1992 the decree was executed and the applicant took possession of the suit premises through Court bailiff by breaking open the locks. On 12-8-1992 the non-applicant filed an application for setting aside exparte decree, which was registered as M. J. C. No. 31/92. The applicant on 20-10-1992 filed reply to the said application wherein preliminary objection about the maintainability of M. J. C. 31/92 was raised on the ground of non-compliance of proviso to Section 17 (1) of the Provincial Small cause Courts Act, 1887, by the non-applicant. The learned counsel for the applicant further contended that the issue in this regard is concluded by the decision of the Supreme court reported in 2002 (1) SCALE 87 (Kedarnath Vs. Mohan Lal Kesarwari and ors. ).