KASEMALI Vs. AJOYENDU PAUL

JUDGEMENT

(1.) The petitioner was defendant in a suit before the Small Cause Court at Alipore for recovery of arrears of rent. The suit was decreed ex parte. On 9-4-1949 he filed an application under Order 9, Rule 13, Civil P. C., for setting aside the 'ex parte' decree. The provision in Section 17(1), Provincial Small Cause Courts Act is that the procedure prescribed in the Code of Civil Procedure, 1908, shall, save in so far as is otherwise provided by that Code or by the Provincial Small Cause Courts Act, be the procedure followed in a Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits. It was this provision which made available to the petitioner the procedure of an application under Order 9, Rule 13, Civil P. C., and, as already stated, he took advantage of this provision and filed an application for setting aside the decree. Section 17(1) has, however, a further provision in its proviso which is in these words:

(2.) (Illegible) Schedule above referred to. All that piece and parcel of about 8 Cottas of land hereditament together with a two storied building standing thereon being and situated at premises No. 38 Russa Road South within Tollygunge Municipality, P. S. Tollygulge, District 24 Parganas butted and bounded On the North By Sultan Alim Road On the East By Kanai Lal Halder's land On the South By the house of Shah Mouji Nanci and On the West By Russa Road My share in the property is 4 as. 6 pies and approximate value of my share in the property is Rs. 20,000/- Ahmad Ali Khan." This bond was written on a stamp paper of Rs. 1/8/0 but had no court-fee stamp affixed. Immediately after the bond was filed, the Court passed an order directing the Sheristadar to test and report on the bond. On 14-5-1949 the Court passed the following order: --

(3.) The matter came up for hearing before Chunder, J. and His Lordship remanded the case to the Small Cause Court to be heard by some other Judge than the learned Munsiff who decided the application on the first occasion -- for decision of two objections raised on behalf of the plaintiff viz. the bond required adhesive stamp and further that it required registration, and directed, "If the court below finds that these objections are proper it will reject the application under Order 9, Rule 13. If the court finds that they do not affect the petition filed by the defendant then it will proceed with the merits of the case". After the matter went back in accordance with this order, the learned Munsiff, who heard it, decided that the bond required, under the law, to be stamped with adhesive court-fee stamp of annas eight, and also that it required registration and in that view rejected the application under Order 9, Rule 13.