J K CHOWDHURY Vs. ASHIS BENERJI

JUDGEMENT

(1.) Facts giving rise to this revision petition under Section 115, Civil P. C. are that the plaintiff -petitioner gave the house in question on lease to the defendant at a monthly rent of Rs. 1750/- from 16th September, 1977 and for a period of eleven months. A lease deed was accordingly executed. After 15th August, 1978, the defendant stopped payment of rent. The cheques issued by him bounced once or twice. The plaintiff then served notice on the defendant calling upon him to vacate the house within three months. Upon the failure of the defendant to vacate the house,the plaintiff instituted a suit on 3rd /4th October, 1979, claiming possession of the house and Rs. 21,000/- as arrears of rent. The defendant though served, did not put in appearance in the court of the Senior Sub-Judge Gurgaon, on 3rd December, 1979.Hence, the case was adjourned to the following 17th for recording ex parte evidence. In the meantime the defendant on 13th December, 1979, put in an application under Order 9, Rule 13 read with Section 151, Civil P.C. for setting aside the order on the ground that he had fallen ill on 2nd December, 1979, and that he recovered on the following 10th.The court set aside the ex parte proceedings against him a,nd fixed 7th January 1980 to enable the defendant to file written statement.On 7th January, 1980 again the defendant absented himself. The court then adjourned the proceedings to 15th January,1980 for ex parte evidence. After recording the same the court on 15th January, 1980 ordered the defendant to put the plaintiff in possession of the house and to pay Rs. 21,000/- as arrears of rent and Rs. 6942.75 as costs. On 13th February, 1980 the plaintiff took out execution proceedings, During the pendency thereof the defendant filed application under Order 9, Rule 13 read with Section 151 Civil P.C. for setting aside the ex parte decree. The said application under Section 5 of the Limitation Act for condoning the delay there of.Another application under Section 151 Civil, P.C. for the stay of the execution of the ex parte decree was made. The court stayed the execution proceedings unconditionally, despite the plaintiffs request for the imposition thereof.

(2.) The facts detailed above would show that before the Senior Sub-Judge, two matters were pressed by the defendant : (1) Application under Order 9, Rule 13,civil P. C. accompanied by an application under Section 5 of the Limitation Act, for setting aside the ex parte decree passed on 15th January, 1980 and (2) Application under Section 151, Civil P. C. for staying the execution of the said ex parte decree. It need hardly be said that these are two distinct matters. So far as Order 9 Rule 13, Civil P. C. is concerned the relevant part reads:-

(3.) Learned counsel for the plaintiff petitioner, however, pointed out that the lower court ignored the fact that the imposition of condition was being sought in the execution proceedings taken out by the plaintiff thus it failed to exercise jurisdiction vested in it. The Court allowed the request of the defendant in his application under Section 151, Civil P. C. that pending the decision of his application under Order 9, Rule 13 Civil P. C. that pending the decision of his application under Order 9, Rule 13, Civil P.C., the execution proceedings be stayed. It is in this situation that the plaintiff claimed that the stay of execution of the decree should be on certain terms. If in the exercise of its inherent powers, the lower court stayed the execution of the ex parte decree, argued the learned counsel, one fails to see what prevented it from imposing condition in the exercise of the said power. It was further urged that after setting aside the ex-parte decree, condition can be imposed under Order 9, Rule 13, Civil P.c. but it was not understandable how the same can be denied during the subsistence of the decree. Instances are not wanting where the Civil P.C. Provides for relief before judgment, for example, attachment of property and appointment of receiver. Moreover, analogy was drawn from the legislation governing the relationship of landlord and tenant wherein on the very first hearing the tenant is under an obligation to deposit the arrears of rent, failing which he suffers eviction. Learned counsel for the defendant was unable to show that the provisions of Order 9, Rule 13, Civil P.C., could operate as a bar to the claim of the plaintiff regarding imposition of condition. All the same he contended that the lower Court having not exercised jurisdiction in this regard, the case beremaded. Lengthy arguments have been addressed before me by the learned counsel for the parties on all the aspect of the case. That being so, I decline to accept the contention of the learned counsel for the defendant.