JUDGMENT O.P. Garg, J.
1. This revision application under Section 25 of the Provincial Small Causes Courts Act (hereinafter referred to as 'the Act') has been preferred against the ex parte decree and order dated 6.3.1990 passed by Sri B. K. Srivastava, the then District Judge, Aligarh in S.C.C. Suit No. 10 of 1984. The suit for possession of the disputed accommodation after ejectment of the defendant-revisionist and for recovery of arrears of rent and mesne profit has been decreed.
2. Heard Sri K. M. Dayal, learned counsel for the defendant-revisionist and Sri M. A. Qadeer on behalf of the plain tiff- opposite party.
3. Suit No. 10 of 1984 was instituted by Masood Asraf Khan against the present defendant-revisionist for the relief of possession after ejectment from the tenanted accommodation, which was let out to the defendant revision 1st at monthly rent of Rs. 1,200. It was alleged that the provisions of U. P, Act No. XIII of 1972 do not apply to the disputed accommodation. A notice to suit was served on the defendant-revisionist on 11.4.1983. Besides the relief for possession after ejectment of the defendant-revisionist, a sum of Rs. 14,400 was claimed as arrears of rent for the period upto 31.3.1983. Damages w.e.f. 1.4.1983 onwards till the possession was delivered to the plaintiff-respondent were also claimed at the rate of Rs. 1,200 per month.
4. Learned counsel for the defendant-revisionist urged that a transfer application moved by the defendant-revisionist was pending before this Court and in spite of the fact that this fact was brought to the notice of the Court below and applications for adjournments were moved. The District Judge. Aligarh refused to adjourn the case on 6.3.1990 and decreed the suit ex parte without taking into consideration the various pleas taken by the defendant-revisionist in his written statement as well as new plea, which was allowed to be incorporated in the written statement by this Court on 16.2.1990. It was also urged that the impugned order passed by the Court below is not in accordance with the provisions of Order XX, Rule 4, C.P.C. Learned counsel for the plaintiff-respondent repelled all these submissions and pointed out that in view of the chequered history of this case, the revision application is liable to be dismissed.
5. As said above, S.C.C. No. 10 of 1984 was originally instituted in the Court of District Judge, Aligarh. In the year 1986, the defendant-revisionist moved a transfer application before this Court with certain allegations. This Court allowed the application and transferred the case to District Judge, Ghaziabad. Subsequently, the defendant-revisionist moved another application for transfer on the ground that the then District Judge. Aligarh has been posted outside and, therefore, the case be sent back to Aligarh from Ghaziabad. This transfer application was allowed and the case was sent back to Aligarh for trial.
6. During the pendency of the suit, the defendant-revisionist moved an application, paper No. 116C, taking the plea that since the suit involves investigation of question of title, therefore, the plaint be returned in view of the provisions of Section 23 of the Act. This application of the defendant-revisionist was rejected by the then District Judge, Sri P. P. Gupta, by order dated 16.1.1988 and a specific finding was recorded that the relationship of landlord and tenant exists between the parties. In the order dated 16.1.1988, a reference was made to the own admission made by the defendant-revisionist that he is tenant of Masood Ashraf Khan-plain tiff in the case, and that he has been paying rent to him. Against the order dated 16.1.1988, defendant-revisionist filed a Civil Revision No. 208 of 1988. Learned single Judge of this Court referred the matter for decision by larger Bench. Thereafter, a Division Bench of this Court answered the question raised by the learned single Judge on 4.4.1989 and subsequently on 25.7.1989, the Revision Application No. 208 of 1988 was dismissed and accordingly, the finding recorded by the learned District Judge, Aligarh on 16.1.1988 became final. When the matter came up for hearing before learned District Judge, Aligarh, the defendant-revisionist moved an application for amendment in the written statement which was rejected on 25.1.1990. The defendant-revisionist filed a revision against the order dated 25.1.1990 which was allowed by this Court on 16.2.1990.
7. The defendant-revisionist has also moved an application under Order IX. Rule 13. C.P.C., which has been registered as Misc. Case No. 18/19 of 1990 for setting aside the ex parte decree dated 6.3.1990. This application is said to be pending. It is also alleged that the defendant-revisionist has filed this application without complying with the provisions of Section 17 of the Act. The present revision application and the Transfer Application No. 21 of 1990 were dismissed by this Court on 22.8.1994.
8. To begin with. It may be mentioned that it is well-established legal position that in spite of the fact that a defendant has filed an application under Order IX. Rule 13. C.P.C. and has not complied with the requirement of the proviso to Section 17(1) of the Act, a revision application under Section 25 of the Act is maintainable because it is one of the two modes available under the law to challenge the ex parte decree. In this connection, a reference may be made to the decision of this Court in Banshi Lal v. Harish Chandra Gupta and others, 1989 (1) ARC 544.
9. It may also be pointed out that on 6.3.1990 when the S.C.C. suit was decreed, ex parte, by the District Judge, Aligarh, there was no stay order in existence in the Transfer Application Case No. 21 of 1990. It was the discretion of the Court to have granted adjournment in the matter. It appears that the fact that the defendant-revisionist had adopted a litigative attitude and was procrastinating the proceedings for one reason or the other, weighed with the ' Court below in not allowing further adjournment on the application of the defendant-revisionist as he has failed to obtain any order of stay in the transfer application which ultimately was dismissed.
10. The only material submission, which is worth consideration in the present revision-application is whether the ex parte decree passed by the Court below on 6.3.1990 can be sustained in view of the provisions of Order XX, Rule 4, C.P.C., which reads as follows :
"4 (1) Judgments of a Court of Small Causes need not contain more than the points for determination and the decision thereon."
The submission of the learned counsel for the defendant-revisionist is that the impugned order, which is cryptic, slip shod and appears to be the outcome of the undue haste, on the part of the Presiding Officer, does not contain even one point for determination and that the defence of the defendant-revisionist has not at all been considered. The Court below has observed that "it is unnecessary to notice the details of the defence as the defendant, on the date of hearing, did not turn up and his learned counsel withdrew from the Court". According to the learned counsel, the Judgment of the Court below cannot withstand the test mandatory provisions of Rule 4 (1) of Order XX, C.P.C. and, therefore, it is liable to be set aside as being nullity. A reference was made to the decision of this Court in Atar Singh and others v. District Judge, Jhansi and others, 1994 (1) ARC 366. The learned counsel for the plaintiff-opposite party urged that in view of the dilatory and obstructionist attitude adopted by the defendant-revisionist, the Court below was justified in passing the ex parte decree and tt was not necessary to state the points for determination as the defendant-revisionist had failed to appear to press his defence.
11. The matter came up for consideration by the Supreme Court in the case of Rameshwar Dayal v. Banda (dead) through his L.Rs. and another, 1993 (1) ARC 249, wherein it was held that it is obligatory for Judge. Small Causes Court to state points for determination and give its finding or decision on each of the said points and if the decision of Small Causes Court is not in conformity with Section 2(2) of C.P.C. It is not a decree. In that case, the Judge. Small Causes Court had not decided the controversy regarding ownership and title of the property of Banda and it was in that context that the above observations were made by their Lordships of the Supreme Court. To properly appreciate and understand the implications of the decree passed by the Court below in the instant case, it would be appropriate to quote a part of the impugned decision dated 6.3.1990 in S.C.C. Suit No. 10 of 1984, in paragraphs 1 and 2, the facts of the case have been stated. Paragraphs 3 and 4 and the operative portion of the judgment run as follows :
".....
3. The defendant has put in appearance and also filed written statement. It is unnecessary to notice the details of the defence as the defendant on the date of hearing did not turn up and his learned counsel withdrew from the Court. As such, the case proceeded ex parte against him.
4. In support of his case, the plaintiff--Masood Ashraf Khan has examined himself. His evidence, coupled with the copy of notice of ejectment on record, which was served upon the defendant--fully proves the case of the plaintiff. Hence the plaintiff would be entitled for the reliefs claimed.
ORDER Plaintiffs claim for ejectment of the defendant and recovery of Rs. 14,400 is decreed with ex parte costs against the defendant. The plaintiff will also get pendente lite and future damages for use and occupation at the rate of Rs. 1,200 per month subject to payment of additional Court fee." A perusal of the above would undoubtedly indicate that the defence of the defendant-revisionist was not noticed or considered for the reason that the defendant absented himself and his counsel withdrew. It was in these circumstances that the trial court had to proceed and decide the case ex parte. In Attar Singh's case (supra), it was held if there is non-compliance of the provisions of Order XX, Rule 4 (1), C.P.C., the decree cannot be treated as nullity but it may be set aside in revision on this ground. A number of decisions have been cited in this ruling, to come to the conclusion that a decree which is not in accordance with Order XX, Rule 4, C.P.C. cannot be treated as nullity or without jurisdiction. The revisional court may, however, set aside the decision of a Judge. Small Causes Court, which is not in accordance with the aforesaid provision. It was held that there is a distinction between decree, which is a nullity, and a decree which is not in accordance with law. A decree is nullity when the Court lacks inherent Jurisdiction to pass a decree or it is against a dead person or passed against some substantive provisions of law which prohibits passing of a decree but a decree which is not in accordance with law cannot itself be treated as a nullity.
12. In Attar Singh's case (supra), the trial court without framing points for determination in the suit, delivered the judgment on 9.7.96, which runs as follows :
"Case called out. Plaintiff is present. Defendant is absent. Proceed ex parte. Plaintiff examined himself as P.W. 1 and filed 6 papers.
Heard.
Order.
Suit for recovery of arrears of rent Rs. 94.60 and damages Rs. 50 and for descendants ejectment from the house in suit is hereby decreed with costs ex parte. The defendant shall also pay pendente lite and future mesne profit at the rate of Rs. 4 per month."
In the context of above judgment, it was observed that it is relevant to note that the case proceeded ex parte against the defendant. Plaintiff examined himself and produced the papers. In these circumstances, there was no controversy raised before the Judge Small Causes Court and the Judge had only to consider the case of the plaintiff and the evidence produced by him. It was not a case where the judgment itself could have been treated as a nullity if the Judgment was not written in accordance with the provisions of Order XX, Rule 4. C.P.C. The writ petition, challenging the aforesaid quoted order on the ground that it was not in accordance with the provisions of Order XX. Rule 4, C.P.C. was dismissed.
13. One thing, therefore, is certain that a Judgment which is not in conformity with the provision of Order XX. Rule 4, C.P.C. is not a nullity or without Jurisdiction. In the case in hand, the facts narrated above which resulted in delaying the hearing and disposal of S.C.C. suit cannot be lost sight of. The defendant-revisionist was out to delay the disposal of the case and with an avowed object of procrastinating the hearing and deferring the decision allowed the case to toss about from one Court to another by resorting to multiple proceedings. The submission of the learned counsel for the defendant-revisionist that after the amendment was allowed to be incorporated by this Court by order dated 16.2.1990 and which has actually been incorporated in the written statement, the case could not be decided in the hot haste without dealing with the plea taken in the written statement by way of amendment. This submission does not withstand the test of scrutiny as the question of title raised by the defendant-revisionist earlier by moving an application, paper No. 116C-2, before the trial court, or by the subsequent amendment, incorporated in pursuance of the order of this Court, stood finally decided and it was no longer necessary to repeat it all over again. As said above, the defendant-revisionist had moved an application, paper No. 116C-2 before the trial court alleging that the plaintiff-opposite party is not the owner of the disputed house and also that there is no relationship of landlord and tenant between the plaintiff and the defendant and, therefore, since the suit involves determination of question of title, the plaint be returned under the provisions of Section 23 of the Act for being instituted before the competent regular Court. This controversy was decided by the learned District Judge by a detailed order dated 16.1.1988. This order was challenged by the defendant-revisionist before this Court in Civil Revision No. 208 of 1988. In view of the conflicting decisions of this Court on the point, learned single Judge referred the matter by order dated 8.4.1988 for an answer by a larger Bench. A Division Bench answered the reference on 4.4.1989 on the basis of which Civil Revision No. 208 of 1988 was dismissed on 25.7.1989. It was held that a Judge Small Causes had the jurisdiction to go into the question of title in the suit. The order dated 16.1.1988, therefore, stood finally confirmed by this Court. The subsequent amendment made in pursuance of the order dated 16.2.1990 passed by this Court also related to certain facts to challenge the title of the plaintiff-opposite party. Since the matter had once been decided, it was no longer necessary to determine the same point again. In substance, therefore, the impugned decision dated 6.3.199O has to be read in conjunction with order dated 16.1.1988 as confirmed by this Court in Civil Revision No. 208 of 1988.
14. Taking into consideration the above facts and circumstances. I am of the view that the impugned decision of the Court below is not hit by the provisions of Order XX, Rule 4, C.P.C. As a matter of fact, since the defendant has allowed the case to proceed ex parte by remaining absent on the date fixed and his lawyer had withdrawn from the Court, the Court below was not required to look to the defence of the defendant-revisionist. The defendant-revisionist had admitted the plaintiffs as his landlord and has further admitted that he had paid rent to him (plaintiff-opposite party).
15. In the result, the decree passed by the Court below remains unassailable. The revision-application is not well-merited and, therefore, no interference is warranted with the impugned judgment and decree passed on 6.3.1990 in S.C.C. Suit No. 10 of 1984. The revision application being devoid of any merit and substance is dismissed with costs. The interim order dated 13.4.1990 is hereby vacated.