Chhedi Lal Yadav v. Addl. District Judge/Special Judge (SC/ST Act), Mirzapur and another
2011-07-20
SHASHI KANT GUPTA
body2011
DigiLaw.ai
Shashi Kant Gupta, J.;- 1. This writ petition is directed against the judgement and order dated 6.8.2002 passed by the Addl. District Judge/Special Judge (SC/ST.) Act ,Mirzapur in SCC Revision no. 11 of 2001 setting aside the order dated 18.8.2001 passed by the Civil Judge (SD), Mirzapur, whereby the application of the tenant for setting aside judgement and decree dated 10.9.1998 passed exparte was allowed. 2. The background facts, in a nutshell, essentially, are as follows follows: 3. The respondent no. 2 is the landlord of the premises in dispute. A suit, being suit no. 2 of 1997, for arrears of rent and ejectment was filed by the plaintiff respondent against the petitioner 4. The trial court, after considering the materials available on the record and hearing the learned counsel for the plaintiff, decreed the suit for arrears of rent and ejectment exparte vide judgement and decree dated 10.9.1998 . 5. Thereafter an application (13-Ga) was filed by the defendant petitioner on 13.1.1999 for setting aside the exparte order dated 10.9.1998. Since the petitioner had neither deposited the decretal amount nor furnished any security as provided in proviso to section 17 of the Provincial Small Cause Courts Act (in short ' Act'), an application was filed by him on 19.2.1999 for granting permission to deposit the decretal amount. The court below by order dated 19.2.199 directed the tenant for depositing the decretal amount within ten days. In compliance of the said order, the defendant deposited only Rs. 2450/- out of the total decretal amount of Rs. 24850/-. Thereafter, on 26.3.1999 the court below again directed the petitioner to deposit the remaining decretal amount within three months. Despite specific order of the trial court the petitioner did not deposit the entire decretal amount within a period as specificed in order dated 26.3.1999. The court below on the application of the petitioner by order dated 23.2. 2001 refused to grant further time but observed that the petitioner can deposit money at his own risk. Thereafter, the tenant deposited the further amount of Rs. 22400/- on 23.3.2001 and thereafter the trial court by order dated 18.8.2001 set aside the exparte decree on the costs of Rs. 500/-. 6. Feeling aggrieved by above order, the plaintiff respondent filed SCC revision No. 11 of 2011 before the District Judge which was transferred to the court of Addl.
Thereafter, the tenant deposited the further amount of Rs. 22400/- on 23.3.2001 and thereafter the trial court by order dated 18.8.2001 set aside the exparte decree on the costs of Rs. 500/-. 6. Feeling aggrieved by above order, the plaintiff respondent filed SCC revision No. 11 of 2011 before the District Judge which was transferred to the court of Addl. District Judge/Special Judge SC/ST Act and the order dated 18.08.2001 passed by the Trial Court was set aside by Order dated 06.08.2002. 7. Being aggrieved and dissatisfied with the judgement and order of the said order of the revisionalcourt , the present writ petition has been filed by the petitioner before this court. 8. Learned counsel for the petitioner submitted that Order passed by the Lower Revisional Court is illegal, arbitrary and is based on complete misreading of the case and misconception of legal position relevant to the matter and has not considered the evidence on record in right perspective. He further submitted that in compliance of the order of the trial court the petitioner had deposited the entire decretal amount and the trial court had rightly allowed the restoration application of the petitioner after hearing the learned counsel for the respective parties and considering the materials available on record and as such the revisional court has exceeded its jurisdiction by interfering with the findings of the fact recorded by the trial court which is not permissible under the revisional jurisdiction. 9. Per contra, learned counsel for the plaintiff respondent submitted that the tenant while filing the application for setting aside the ex-parte decree had neither deposited the decretal amount nor furnished any security in respect thereof in compliance of the proviso to section 17 of Provincial Small Cause Courts Act and in spite of the direction of the court he paid only a very meager amount of Rs. 2450/- out of the decretal amount of Rs.
2450/- out of the decretal amount of Rs. 24850/- on 24.02.1999 and that too without mentioning the particulars of the present suit as a result of which the plaintiff respondent could not withdraw that amount too, and it was only on 23.3.2001 i.e. after about two years from the date of filing an application for setting aside an ex-partee order, he deposited the entire decretal amount without the permission of the Trial Court as is evident from the Order dated 23.02.2001 passed by the Trial Court, as such the revisioinal court has committed no illegality in allowing the revision of the landlord respondent. 10. Heard the learned counsel for the parties and perused the record. 11. A bare perusal of the record would show that the exparte order and decree was passed on 10.8.1998 and the application for recalling the said order by him was filed on 13.1.1999 but neither any decretal amount was deposited by the tenant nor any security was furnished in respect thereof under section 17 of the Provincial Small Cause Courts Act. It was only on 19.2.1999 an application for granting permission to deposit the decretal amount was filed by the tenant and despite the order dated 19.2.1999, the entire decretal amount was not paid and it was only on 23.3.2001 the entire decretal amount was deposited. The record further reveals that at no point of time the petitioner had complied with the provisions of section 17 of the Provincial Small Cause courts Act. The order passed by the Trial Court dated 13.03.2001 is illegal and unjustified and is based on complete misreading of the case and misconception of the legal position relevant to the matter. 12. Considering the materials available on record, this court is of the considered opinion that the observation of the revisional court to the effect that neither the tenant deposited the entire decretal amount nor furnished any security for depositing the said amount in compliance of the proviso to Section 17 of the Act does not suffer from any illegality or perversity and as such the order passed by the revisional court does not call for any interference by this court . 13. In view of what has been discussed, herein above, I do not find any illegality, infirmity or perversity in the impugned order of the revisional court which may warrant any interference by this Court. 14.
13. In view of what has been discussed, herein above, I do not find any illegality, infirmity or perversity in the impugned order of the revisional court which may warrant any interference by this Court. 14. In the result, the writ petition fails and is dismissed.