JUDGMENT J.C. Gupta, J.
1. This is tenant's writ petition.
2. The dispute relates to Shop No. 10/2. Baldeo Road. Tundla, district Firozabad. The landlord-respondent No. 2 filed suit for rent and ejectment against the petitioner and the same was decreed ex parte after treating the service of summons by publication in newspaper as sufficient. The petitioner made an application before the trial court for setting aside the ex parte decree and in compliance of Section 17 of the Provincial Small Cause Courts Act (hereinafter referred to as the 'Act') deposited a sum of Rs. 3,150 as against the decretal amount of Rs. 1.250. The trial court allowed the petitioner's application and set aside the ex parte decree. After the contest made by the petitioner, the trial court by the Judgment dated 16.1.1993 dismissed the suit in respect of decree for eviction but decreed the same for recovery of rent. Aggrieved by the said Judgment, the landlord preferred revision under Section 25 of the Act. In the revision also, the petitioner was not served personally and the revisional court proceeded to hear and decide the revision ex parte on the basis of substituted service made by publication in the newspaper "Swaraj Times". By the order dated 25.8.1995, the revision was allowed and the landlord's suit has been decreed for eviction also. On coming to know of the said decision, the petitioner moved an application purporting to be under Order IX, Rule 13 read with Section 141 of the Civil Procedure Code and Article 123 of the Limitation Act for recalling the ex parte order dated 25.8.1995 passed by the revisional court. By the impugned order dated 13.2.1997, the revisional court has dismissed the petitioner's application.
3. Counter-affidavit and rejoinder-affidavit have been exchanged and the parties counsel have been heard.
4. Learned counsel for the petitioner argued before this Court that when the revisional court was itself satisfied that the petitioner had not been duly served by the mode of substituted service by publication in newspaper. It committed a manifest error of law in rejecting the restoration application on a mere technical ground of non-compliance of the proviso to Section 17 of the Act. The petitioner's counsel contended that the said provision could not be made applicable to the proceeding in revision and in any view of the matter, the revisional court failed to notice that the petitioner had already deposited money in the trial court which was more than the amount covered by the decree. On an examination of record. I find force in the submission of the learned counsel.
5. It is the requirement of law that when a judgment has gone in favour of a party and if that judgment is challenged in appeal or revision, no adverse order can be made against the successful party without giving him an opportunity of hearing. The service of notice for hearing is thus essential. The object of service of such a notice is based upon the maxim 'audi alteram partem', that is. no one should be condemned unheard. Substituted service is made on some other person or in some other manner when the party cannot be found or avoids service. In the present case, when the petitioner stated on oath in his affidavit that he had no personal knowledge of the proceedings and was not duly served by the publication in a newspaper which was not in wide circulation in the area where the defendant resided. substituted service through publication in such newspaper could not be held to be sufficient. In the present case, the revisional court while deciding the recall application of the petitioner has itself observed that the assertion of the petitioner that he had no knowledge of the pendency of the revision appeared to be true, but still the revisional court rejected the petitioner's application on the ground that there had been no compliance of the provisions of proviso to Section 17 of the Act.
6. Learned counsel for the petitioner firstly contended that the provisions of Section 17 of the Act are not applicable to revisional court proceedings and in support of his argument, he placed reliance on the decision of Punjab High Court in the case-of M/s, American Furnishing House. New Delhi and another v. Udai Ram Bhurgi, AIR 1966 Punj 364. wherein it was held that the proviso to sub-section (1) of Section 17 of the Act engrafts an exception to the general procedure prescribed by the Code of Civil Procedure which is to apply when an application is made to set aside an ex parte decree and as its provisions place a restriction on the powers of the Court in setting aside an ex parte decree even on sufficient cause having been shown therefore, it would be a sound rule of construction to hold that a case would not fall within the ambit of the proviso unless it is strictly covered by the language used therein. In the absence of anything in Section 17 to indicate that the provisions of the proviso to sub-section (1) would have to be complied with not only when an application is made to set aside the ex parte decree to a Court of Small Causes but also when an application is made to set aside ex parte decree granted by the High Court in a revision-petition under Section 25 of the Act. the proviso cannot be held to be applicable to the later contingency and tt was. therefore, held that it was not essential for the defendant to deposit the decretal amount or to furnish the security in accordance with the proviso to sub-section (1) of Section 17 of the Act before the ex parts decree passed in revision was set aside. On the other hand, learned counsel for the respondent relied upon a Division Bench decision of this Court in the case of Shiv Singh v. IIIrd Addl. District Judge. Shahjahanpur and others, 1983 ARC 749, wherein it was held that by virtue of sub-section (1) of Section 17, the procedure of the Code shall be followed in the Court of Small Causes in suits and in all proceedings arising out of the said suits. In other words, the procedure prescribed in the Code of Civil Procedure will also be followed in revisions arising out of Small Cause suits save in so far as it is otherwise provided by the Code or the Act. In para 9 of the report, the Court observed :
"The procedure given in these rules of Order IX will, in view of Section 17 of the Pr. S.C.C. Act be followed in the Court of Small Causes in relation to suits. The same procedure will also be applicable to proceedings arising out of such suits. Order IX. C.P.C. will apply to it. Hence, a Court seized of a revision under Section 25 has power and jurisdiction to dismiss it for default."
7. There could be no dispute that by virtue of sub-section (1) of Section 17, the procedure prescribed in Civil Procedure Code has to be followed in revision filed under Section 25 of the Act, However, the proviso deals with a situation which is not provided in the C.P.C. In the Division Bench case, the only question involved for consideration was whether the revision could be dismissed in default of the party under Order IX C.P.C.? The Court did not have the occasion to examine the question whether or not the proviso to Section 17 will also be applicable to an application in revision made under Section 25 of the Act. The Punjab case is a direct authority on this question and I see no reason to take a different view from what has been expressed by Hon'ble H. R. Khanna, J.. In the aforesaid decision of Punjab High Court.
8. Be that as it may. there is material on record to Indicate that the petitioner had deposited a sum of Rs. 3,150 while making compliance of Section 17 of the Act when he had moved application before the trial court for setting aside the ex parte decree passed by the trial court. It is stated in the counter-affidavit that the said amount was not sufficient to cover the entire decretal amount. The trial court had dismissed the suit for eviction and only suit for recovery of arrears of rent was decreed. The revision was filed by the landlord and not by the petitioner, which was allowed ex parte without giving any opportunity of hearing to the petitioner. In the circumstances, the revisional court should not have taken such a rigid view in rejecting the application of the petitioner for the restoration of revision to its original number. In any view of the matter, if the revisional court felt that the amount deposited by the tenant in the trail court did not cover the entire amount accruing upto the date of making of recall application, it should have given an opportunity to the petitioner to deposit the shortfall, if any or to furnish security for the aforesaid amount.
9. The revisional court in such circumstances, was not justified in rejecting the petitioner's recall application by taking a very narrow and rigid view in the matter. It is well-established principle that technicalities should not be allowed to come in the way of dispensation of Justice. Ruks of procedure are meant to subserve and not to govern the cause of justice. The impugned order dated 13.2.1997 passed by respondent No. 1. therefore, cannot be sustained and the petitioner's application for recalling the order dated 25.8.1995 has to be allowed.
10. For the reasons stated above, this writ petition is allowed. The orders dated 13.2.1997 and 25.8.1995 made by the respondent No. 1 are set aside and the revision shall stand restored to Its original number. The revisional court is directed to hear and decide the revision afresh in accordance with law expeditiously preferably within a period of two months from the date of production of a certified copy of this order. Costs for this writ petition are made easy.