MD. EBADULLAH BEPARI Vs. NIKHIL CHANDRA DAS

JUDGEMENT

(1.) Tenant-defendant of an ejectment suit has filed this appeal by special leave granted by us to consider the question whether the High Court Division's order on a revisional application under section 25 of the Small Causes Courts Act is legal and proper. The impugned order is dated 16 January, 1984 in Civil Revision No.121 of 1983 of the High Court Division at Rangpur.

(2.) Plaintiff-respondent filed S.C.C. Suit No.4 of 1981 in the Court of Subordinate Judge, Dinajpur, seeking ejectment of the appellant, a monthly tenant in respect of the premises in question, on the ground of default in the payment of rent. The suit was fixed for pre-emptory hearing, after two adjournments, on 27 May 1982, but as the defendant was found absent the suit was decreed ex parte. Defendant filed an application on 31 May 1982 under Order IX, rule, 13 of the Civil Procedure Code for setting aside the ex parte decree on the ground that he could not attend the Court on the date fixed for hearing because of his illness. The plaintiff raised objection to the very maintainability of the application taking the ground that the provision of section 17 of the Small Causes Courts Act as to deposit of the decretal dues or furnishing of a bond, along with the filing of the application, was not, complied with. After the expiry of 8 months of this objection the defendant deposited the decretal amount. But the Court rejected the deposit holding that the deposit could have been made at the time of presentation of the application for setting aside the ex-parte decree under section 17(1) the provision of which is mandatory. This view of the learned Small Causes Court Judge has been maintained by the High Court Division which has also observed that facts of the instant case are quite distinguishable from those of the case of Benode Bepari Saha vs. Nitya Gopal Shaha, 33 DLR (AD), 131 in which this Appellate Division observed that in appropriate cases the Court got power to allow time to a petitioner to deposit the decretal amount or to furnish necessary bond beyond the period of limitation.

(3.) Mr. K. Z. Alam, learned Advocate for the appellant, has argued that provision of section 17(1) of the Small Causes Courts Act is not mandatory and that the deposit made by the appellant in this case should have been accepted as due compliance with the provision of this section. Mr. Jamiruddin Sircar, learned Advocate for the respondent, on the other hand, contended that the appellant willfully neglected to comply with the provision of section even after the respondent had pointed out to defect on two occasions and that in the circumstances the decision in the case of Benode Bepari Saha is not applicable to the instant case.