Research › Search › Judgment

Uttarakhand High Court · body

2004 DIGILAW 57 (UTT)

Punjab and Sind Bank v. Sri Ram Panjwani

2004-05-17

RAJESH TANDON

body2004
JUDGMENT Heard the learned counsel for the parties. 2. By the present revision under section 25 of the Provincial Small Causes Court Act, the revisionist has challenged the order dated 30.8.2003 passed by the District Judge, Hardwar rejecting the application under Order 9 Rule 13 for setting aside the ex parte decree. 3. Briefly stated the facts giving rise to the present revision are that a S.C.C. suit was filed by the respondent no. 1 Sri Ram Panjwani for the eviction of the revisionist from the premises known as Punjab and Sind Bank, situated on the ground floor, Panjwani building, Birla Road, Jwalapur, Hardwar. The respondent no. 1 Sri Ram Panjwani filed a suit being S.C.C. Suit No.1 of 1992, stating therein that the revisionist defendant is the tenant on the premises in dispute @ Rs. 5,000/- per month from 16.1.1984 in pursuance to the lease deed dated 14.1.1984. According to the plaintiff the rent was increased from 16.1.89 @ 15% and the same has become payable @ Rs. 5750/- per month apart from the water charges. 4. The plaintiff has stated in his plaint that Act. no. 13 of 1972 is not applicable to the building in dispute as the rent of the premises is more than Rs. 2,000/- per month. The plaintiff has sent a notice to the defendant on 22.1.1996 for determination of his tenancy which was duly served upon the defendant on 22.1.1996 but despite service of notice, he failed to vacate the premises. 5. The defendant revisionist contested the suit but the suit was decreed ex parte vide order dated 2.7.2001. The revisionist has filed an application on 1.8.2001 under Order 9 Rule 13 CPC for setting aside the ex parte decree but the trial Court has dismissed the same. Hence, the present revision has been filed by the defendant. 6. The learned District Judge has come to the conclusion that date was fixed on 30.3.2000 for evidence of the revisionist defendant and since he failed to appear on that date, the case was directed to proceed ex parte and on 2.7.2001 case was decreed ex parte. The learned District Judge has observed while rejecting the application under Order 9 Rule 13 CPC that from 13.3.2000, revisionist was always absent. The learned District Judge has observed while rejecting the application under Order 9 Rule 13 CPC that from 13.3.2000, revisionist was always absent. It is a settled law that while deciding application under Order 9 Rule 13 C.P.C. for setting aside the ex parte decree past conduct of the defendant has not to be looked into and the court is required only to record findings with regard as to whether cause shown for setting aside the ex parte decree is sufficient or not. Similar proposition of law has been held by Allahabad High Court in the case of Surendra Kumar and another Vs. Rajendra Kumar Agarwal, A.R.C. 1989 (2) page 263 to the following effect: "In each case depending upon the merits and sufficiency of the reasons for allowing the adjournment, the Court has to exercise its discretion and having exercised its discretion it is not imperative for the Court to go into the past conduct that in view of several adjournments having granted, no adjournment can be allowed. " 7. More so, if the suit itself was filed on the ground that since the rent of the building is more than Rs. 2,000/- the building does not come under the preview of U.P. Act No. XIII of 1972. It was necessary that opportunity should have been given to the revisionist to contest the case and the suit should have been decided on merits. It is well known that where Act No. XIII of 1972 was not applicable on account of rent of the building being more than Rs. 2,000/-, the defence open for the revisionist, is to Challenge the notice alone and he cannot be allowed to take shelter of U.P. Act No. XIII of 1972, so as to prolong the litigation. 8. In view of the aforesaid facts and circumstances, the revision is allowed. The impugned Order dated 30.8.2003 rejecting the application under Order 9 Rule 13 is quashed. The ex parte decree dated 2.7.2001 is set aside and the trial Court is directed to proceed with the suit in accordance with law. 9. Parties are directed to appear before the trial Court on 7th June 2004.