Raj Kumar v. Navneet Kumar — 1987 DIGILAW 573 (ALL)

JUDGMENT B.N. Sapru, J. - This is a tenant-defendant's revision against a decree by the Judge, Small Causes Court, decreeing the suit for ejectment, arrears of rent amounting to Rs. 2,661-00 and pendente lite and future damages at the rate of Rs. 2,000-00 per month. The suit was decreed ex parte. 2. What had happened was that the case was registered on 22-8-1985. The summons were served on 24-9-1985 and 29-11-1985 was fixed for disposal. On 25-9-1985, the defendant tenant applied for permission to make the deposits under Section 20 (4) of the U.P. Act No. XIII of 1972 and he was allowed time till 5-10-1985 to do pairavi. On 29-11-1985, the defendant filed a written statement and also filed an application for adjournment which was opposed. The adjournment was allowed subject to payment of Rs. 30/- as costs and 18-2-1986 was fixed. 3. Mean-while on 31-1-1986 the plaintiff applied that the defence of the tenant should be struck off. This application was ordered to be put on the date fixed namely, 18-2-1986. On 7-2-1986 the defendant applied for time to file objections to the application for striking off the defence. The Court ordered that the objection, may be filed by the date fixed, namely 18-2-1986. 4. On 18-2-1986 the Presiding Officer was on casual leave. The case was ordered to be put up on 21-4-1986. On 21-4-1986 the order sheet runs as follows : "21-4-1986 Present: Sri Navneet Kumar plaintiff in person along with his counsel Sri J.C. Pandey. Previous cost has not been paid. No body responds on behalf of the defendant. There is no sufficient ground for adjournment. The adjournment application is, therefore, rejected. The defendant is absent. His application for adjournment has been rejected. The suit is to be heard ex parte. The plaintiff wants to file affidavit in ex parte evidence. He may do so along with proper application, Put up after lunch for orders. Sd/-Illegible" 5. On that date the requisite affidavit and certain papers were filed. The case was listed for orders on 28-4-1986 on which date the suit was decreed ex parte. 6. I may point out that on 21-4-1986 an application for adjournment was filed by the Counsel for the defendant in which it was stated that he was to attend the Court of the Additional Civil Judge Mussorie and therefore, he was unable to attend. 6. I may point out that on 21-4-1986 an application for adjournment was filed by the Counsel for the defendant in which it was stated that he was to attend the Court of the Additional Civil Judge Mussorie and therefore, he was unable to attend. This application was rejected by the Court which proceeded with the ex parte hearing. 7. As will be seen from the order-sheet, the defendant was also absent. In other words, there was no body to press the application for adjournment. 8. The learned Counsel for the applicant has submitted that the Court should have adjourned the hearing as the counsel was absent and an application for adjournment had been made. It will be seen that the Court took into account that the costs of Rs. 30/- ordered to be paid on 29-11-1985 had not been paid by the defendant. The Court had obviously in mind the provisions of Section 35-B of the Code of Civil Procedure which provides that where the Court has adjourned the hearing on an earlier occasion subject to payment of costs, the payment of such costs shall be a condition precedent to the further prosecution of the defence by the defendant, where the defendant was ordered to pay such costs. In other words, the defendant is not entitled to defend the suit if the requisite costs for adjournment had not been paid, which was allowed subject to payment of costs. 9. The learned Counsel for the application has cited certain decisions in support of the contention that the court was not justified in refusing the adjournment and proceeding ex parte. 10. The first decision relied upon is in the case of Jwala Prasad v. Ajodhya Prasad (1983 Allahabad Civil Journal 206). In that case decided by the Supreme Court. What had happened was that when the revision was called out neither the applicant before the Supreme Court nor his Counsel was present and as such the revision was dismissed in their absence. An application for restoration of the revision application was dismissed, which was taken up by the Additional District Judge in his chamber on 24-9-1977 and was dismissed without giving an opportunity to the applicant of being heard and though the appellant mentioned the matter before the Additional District Judge on the same date, it was not restored. An application for restoration of the revision application was dismissed, which was taken up by the Additional District Judge in his chamber on 24-9-1977 and was dismissed without giving an opportunity to the applicant of being heard and though the appellant mentioned the matter before the Additional District Judge on the same date, it was not restored. In the circumstances, the Supreme Court set aside the two orders and restored the revision application to its original number. This case is distinguishable from the facts of the present case as the restoration application had been dismissed in the chamber without an opportunity of hearing to the applicant. 11. The next decision relied upon by the learned Counsel for the applicant is a decision of the Supreme Court in the case of Ramji Dass and others v. Mohan Singh, (1978 Allahabad Rent Cases 496). What had happened was that an ex parte decree was set aside by the trial Court and its order was confirmed in revision by the District Court. The High Court in exercise of its power under Section 115, C.P.C., set aside the order of the District Court. The Court observed that under Section 115 C.P.C., the High Court should not have interfered with the order of the District Court and of the trial Court setting aside the ex parte decree. The Supreme Court went on to hold that under Section 115, C.P.C., the interests of justice should be taken into account. In the circumstances, it set aside the order of the High Court and directed the trial Court to proceed with the matter expeditiously. This case again is of no assistance to the applicant, as in the instant case, the applicant has come up against an order decreeing the suit ex parte. The facts in the reported case are entirely different then the instant case. 12. Another decision relied upon is in the Case of Baldeo Singh and others v. District Judge, Faizabad and others (1986 Lucknow Civil Decision 137). All that the Case ruled is that passing of an ex parte decree is not favoured. This case only lays down a broad proposition regarding the passing of the ex parte decrees. 13. Two unreported decisions of this court have also been relied upon by the learned Counsel for the applicant. One is a decision in Civil Misc. All that the Case ruled is that passing of an ex parte decree is not favoured. This case only lays down a broad proposition regarding the passing of the ex parte decrees. 13. Two unreported decisions of this court have also been relied upon by the learned Counsel for the applicant. One is a decision in Civil Misc. Writ petition No. 18738 of 1985, Mujib Ahmad v. District Judge Dehradun, and others, decided by Hon'ble S.D. Agarwala. J. on 16-12-1986, Reported in 1987 (2) ARC 281, what had happened was that the suit was decreed ex parte on 4-9-1985 and on 25-9-1985, an application to set aside the ex parte decree was filed. This application was rejected by the Judge Small Causes Court on 2-6-1986 aggrieved by the decision, the applicant filed a civil revision before the District Judge and the District Judge, Dehradun dismissed the revision on 12-9-1986. The two orders, namely 2-6-1986 and 12-9-1986 were challenged in the writ petition. A perusal of the Judgment of the High Court indicates that on 3-7-1986, the case was fixed for final hearing before the Judge Small Causes. On that date, the defendant was absent and the Court proceeded ex parte against the defendant and fixed 5-7-1986 for delivery of judgment. On 5-7-1986 the applicant appeared before the Court and made an application for setting aside the ex parte order dated 3-7-1986 which was rejected by the Judge Small Causes on the ground that a decree had not yet been passed. The decree was passed on 4-9-1986. On 4-9-1986 again an application was made for setting aside the ex parte. The Court has observed as follows : "It would be, therefore, apparent that immediately after ex parte order was passed against the petitioner, the petitioner had appeared before the Court and moved an application for setting aside the ex parte order of 5th July 1986. This application was rejected on the ground that the application was not maintainable and consequently, a fresh application was moved on 25th September, 1986, after the decree was passed. This, by it-self shows that there was sufficient cause on the part of the petitioner for his non-appearance before the Court. In my opinion, both the Courts below have acted illegally and with material irregularity in the exercise of their jurisdiction in not allowing the application for setting aside the ex parte decree." 14. This, by it-self shows that there was sufficient cause on the part of the petitioner for his non-appearance before the Court. In my opinion, both the Courts below have acted illegally and with material irregularity in the exercise of their jurisdiction in not allowing the application for setting aside the ex parte decree." 14. Having recorded this finding, the writ petition was allowed and the impugned orders were quashed and the trial court was directed to decide the case on merits. This case is again distinguishable from the facts of the instant case. 15. Another decision relied upon by the learned Counsel for the application is a decision in Civil Revision No. 1648 of 1975 connected with FAFO No. 242 of 1975, Mohammad Ali v. Inder Lal, decided on 19-2-1979. In this case, it was found by the High Court that on 19-8-1972 the plaintiff had filed two application, one for striking down the defence of the defendant under Order XV Rules 5 CPC and another for amendment of the plaint. The trial Court had fixed 12-4-1975 for the disposal of the two application on 12-4-1975, the date fixed, one of the counsel for the defendant with drew from the case with the permission of the trial Judge and the other was absent. The defence was struck down and the trial Court passed a decree. The High Court having come to the conclusion that 12-4-1975 had been fixed only for the disposal of the two application which were numbered as 21C and 22C, and that the date 12-4-1975 was not fixed for disposal of the case, the High Court set aside the ex parte decree. This case is again of no assistance to the learned Counsel for the applicants as I find that 21-4-1985 was the date fixed not only for the disposal of the application but for the disposal of the suit also. 16. I am also of the view that in view of the provisions of Section 35-B of the Code of Civil Procedure the defendant had dis entitled himself from further prosecution of his defence by not paying the costs of Rs. 30/- which had to be paid because the defendant had, on an earlier occasion, obtained adjournment subject to payment of costs. 17. 30/- which had to be paid because the defendant had, on an earlier occasion, obtained adjournment subject to payment of costs. 17. New coming to the merits of the case, the learned Counsel for the applicant has argued that the judgment of the trial Court does not comply with the provisions of Order XX Rule 4 (1) C.P.C. He submits that the requirement of Order XX Rule 4 (1) C.P.C. is that a judgment of the Court of Small Causes need not contain more than the points for determination and the decision thereon. The learned Counsel submits that the judgment does not meet this requirement. The Court found that the building was not subject to the provisions of the U.P. Act No. XIII of 1972 and that the tenancy of the applicant had been terminated by a notice under Section 106 of the Transfer of Property Act. Having recorded this finding, the Court decreed the suit, The Court has also observed that the requisite evidence in support of his case has been filed by the plaintiff. To me, it appears that the judgment fully complied with the requirement of Order XX Rule 4 (1) C.P.C. 18. The learned Counsel for the applicant has relied upon a decision in the case of M/s. Krishna Fine Art Printers v. Ram Chandra Sharma, (1979 (5) A.L.R. 453). In the reported case, the judgment was found not to have complied with Rule 4 of Order XX, C.P.C. In the reported case, a suit had been decreed by the trial Court for the arrears of rent and ejectment. The court has found that: "A perusal of the Judgment of the trial Court shows that after the mention oi the particulars of the case, it has been observed by it under the heading of "Nirnaya (decision)" that the plaintiff examined himself and deposed to the facts stated in the plaint and that the plaintiff was entitled to an ex parte decree. Thereafter, the operative portion which is headed as "Adesh" mentions the actual decree which has been passed by the Court". 19. This is certainly the skeleton of a judgment. The Case before the High Court was one where the judgment clearly did not comply with the provisions of Order XX Rule 4, C.P.C. and was, therefore, set aside. Thereafter, the operative portion which is headed as "Adesh" mentions the actual decree which has been passed by the Court". 19. This is certainly the skeleton of a judgment. The Case before the High Court was one where the judgment clearly did not comply with the provisions of Order XX Rule 4, C.P.C. and was, therefore, set aside. In the instant Case, the Court has applied its mind to the facts of the case and recorded a finding. 20. The learned Counsel for the applicant submits that the applicant denied that he was a tenant of the accommodation in suit and the Court should have recorded a finding as to whether the applicant was or was not a tenant. Before the court, there was only the evidence of the plaintiff. It was to the effect that the defendant was a tenant and the Court has found that the plaintiff was the land-lord and the defendant was a tenant on a monthly rent of Rs. 1500-00. It cannot be said that, in this regard, the Court had not applied its mind. 21. It is then submitted that admittedly the rent was Rs. 1500-00 per month and consequently, the Judge Small Causes Court erred in awarding pendente lite and future mesne profits at Rs. 2,000-00 per month. 22. Sri L.P. Naithani appearing on behalf of the respondent states that the decree of the Court awarding more than Rs. 1,500-00 per month as mesne profits may be modified and the amount of mesne profits may be reduced to Rs. 1,500-00. 23. In the result, the revision is allowed in part. I find no reason to modify the decree so far as arrears of rent at the rate of Rs. 1,500-00 per month and the ejectment is concerned I, however, modify the decree of the Judge Small Causes Court to this extent that the pendente lite and future mense profits shall/be fixed at Rs. 1,500-00 per month. Since the revision is being allowed partly, both the parties will bear their own costs through-out. The decree for eviction can be put into execution after a month.