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2012 DIGILAW 2962 (ALL)

Madhusudan Awasthi v. A. D. J. Kanpur Nagar

2012-12-19

SIBGHAT ULLAH KHAN

body2012
Sibghat Ullah Khan,J. Heard learned counsel for both the parties 2. In this petition on 18-12-2012 for lowing order was passed Meanwhile, learned counsel for the petitioner shall seek instruction from his client on telephone about the number which has been allotted to the restoration application which is stated to have been filed on 17.11.2012. It must also be clarified as to whether along with restoration application any stay application was filed or not and if filed what order was passed thereupon on the date of filing Today the petitioner shall not be evicted. Petitioner may communicate this order to the Court or authority concerned on affidavit Learned counsel for respondent caveator is also present Heard learned counsel for the petitioners during earlier part of the day as well as after lunch and learned brief holder of Shri Shiv Kumar Yadav, learned counsel for landlord-respondent who has appeared through caveat. Landlord-respondent no.2 Gopal Bajpai instituted suit for eviction against tenants-petitioners in the form of S.C.C. suit no.60 of 2007. Judge Small Causes Court/Additional District Judge, Court No.24, Kanpur Nagar decreed the suit ex-parte on 18.10.2012. Learned counsel for the petitioners states that on 17.11.2012 petitioners tenants have filed restoration application which has been numbered as Misc. Case no.9/74 of 2012. Learned counsel for the tenant-petitioners further states that on the restoration application no stay order was granted and 17.12.2012 was fixed as the next date and thereafter 4.2.2013 was fixed. However, learned counsel for the landlord-respondent states that he has not yet been able to ascertain as to whether alongwith restoration application any stay application has been filed or not. This writ petition is directed against the ex-parte judgment and decree dated 18.10.2012. Arguments have been heard. However, before I could start dictating the final order, learned counsel for the landlord respondent requested that the case might be taken up tomorrow so that he could ascertain as to whether alongwith restoration application stay application was filed or not? Accordingly, put up tomorrow after lunch for dictation of order. Until tomorrow petitioners shall not be evicted. 4.Even though learned counsel for landlord respondent has stated that according to his information stay application has not been filed along with application for restoration however learned counsel for the petitioner asserts otherwise. Accordingly, put up tomorrow after lunch for dictation of order. Until tomorrow petitioners shall not be evicted. 4.Even though learned counsel for landlord respondent has stated that according to his information stay application has not been filed along with application for restoration however learned counsel for the petitioner asserts otherwise. 5.Learned counsel for landlord respondent has argued that in order to avoid compliance of Section 17 of P.S.C.C. Act, tenant has filed this writ petition and restoration application filed by the tenant is not maintainable for want of deposit of decreetal amount. Learned counsel for the petitioner states that the ground taken by the petitioner in the restoration application is that the suit was transferred from one court to another but information of transfer was neither given to the petitioner nor to his counsel as required by Rule 89-A of General Rules Civil, hence ex parte decree is liable to be set aside without depositing the amount as required by Section 17 P.S.C.C. Act and in this regard learned counsel has cited an authority of this court reported in Balbir Singh Chauhan Vs. Vijai Kumar Agarwal, 1987 (1) AWC 388 . Let this point be decided by lower court. Learned counsel has also cited two more authorities of this court i.e. Ashtosh Shrotriya Vs. Rais Uddin, 1994 (24) ALR 238 and Sikandar Vs. Akhalak, 2008, 2008 (72) ALR 121. 6. Learned counsel for landlord respondent has argued that firstly, compliance of the above Rule was done and secondly petitioner as well as his learned counsel were fully aware about the transfer and the date fixed by the transferee court and thirdly requirement of Section 17, P.S.C.C. Act is to be complied with irrespective of the ground which may be taken in the restoration application. Learned counsel has further argued that requirement of deposit is anterior to the consideration of the restoration application as what is the ground of restoration will come afterwards hence in no case the requirement of deposit under Section 17, P.S.C.C. Act may be dispensed with. 7.Accordingly, it is directed that the trial court shall consider all the points which may be raised by any of the parties. 04.01.2013 is reported to be the date fixed in the restoration application. 7.Accordingly, it is directed that the trial court shall consider all the points which may be raised by any of the parties. 04.01.2013 is reported to be the date fixed in the restoration application. Both the parties shall address the trial court on the said date on the restoration application and shall file certified copy of this judgment on the said date. The trial court may hear the argument to some extent but the arguments must be concluded on the next date which shall be in the second week of February, 2013. 8.Eviction of the petitioner shall remain stayed until the decision of the restoration application provided that by 07.01.2013 he deposits Rs.2 lacs before the trial court and further amount of Rs.2 lacs is deposited on or before 01.02.2013. In case of default petitioner shall be evicted forthwith. 9. Writ Petition is accordingly, disposed of. The deposited amount shall not at once be paid to the landlord respondent. At the time of deciding the restoration application, suitable order regarding disbursement of the deposited amount shall be passed by the trial court.