Heard Sri Anand Prakash Srivastava, counsel for the petitioner and perused the record.
S.C.C. Suit no. 24 of 2007 was filed by landlady Smt. Jamuna Devi for recovery of arrears of rent and ejectment of the petitioner from the accommodation in dispute.
According to the petitioner, service of notice and summons was manipulated and the court below vide its order dated 14.12.2007 deemed service of notice to be sufficient upon the petitioner and thereafter on the next date i.e. 10.1.2008, the aforesaid suit no. 24 of 2007 was ordered to proceed ex parte against the tenant petitioner. The suit was thereafter decreed ex party vide judgment and order dated 24.7.2008 by the court of District Judge, Varanasi who decided the suit in the capacity of Judge, Small Causes Court, Varanasi.
It appears that the petitioner filed a recall application alongwith application for condonation of delay which was registered as misc. case no. 4 of 2009. The Additional District Judge, court no. 9, Varanasi, after hearing objections of the respondent, rejected the application moved by the petitioner under section 5 of the Indian Limitation Act, on the ground that compliance of mandatory provisions of section 17 of the Provincial Small Cause Court Act, have not been made by the tenant petitioner. It was also held by him that application of the petitioner under Order IX Rule 13, C.P.C. for setting aside the ex party decree, cannot be allowed without compliance of mandatory provisions of section 17 of the Provincial Small Cause Court Act.
It appears that thereafter execution case no. 4 of 2008 was filed for execution of the ex parte judgment and decree dated 24.7.2008, in which the petitioner moved his objection under section 47, C.P.C. The petitioner also filed Civil Revision No. 5 of 2011, Pramod Kumar Agarwal Vs. Smt. Jamuna Devi, in the High Court against the order passed on his application under Order IX Rule 13, read with section 151, C.P.C.. The High Court granted stay of the order dated 2.12.2010 and 14.2.2011 subject to petitioner's depositing the entire decreetal amount as well as damages as determined by the court below alongwith mesne profit within a period of three weeks from the date of the interim order. The order further provided that in case the petitioner/revisionist fails to deposit the amount aforesaid, the interim order shall automatically stand vacated.
According to the petitioner, he had no financial capacity to pay Rs. 11,61,359/- i.e. the decreetal amount, hence he moved modification application no. 29309 of 2011 in the aforesaid revision before the High Court praying that interim order dated 13.1.2011 may be modified and the petitioner tenant may be permitted to deposit the due amount of admitted rent i.e. Rs. 4100/- per month and further that so far as the the alleged damages and mesne profit are concerned, he may be permitted to furnish security other than cash and bank guarantee. The petitioner also moved an application in Execution Case No. 4 of 2008 before the executing court taking the plea that since modification application of the petitioner is pending in the revision before the High Court in which 14.2.2011 has been fixed, hence execution may be adjourned to some other date after aforesaid date i.e. 14.2.2011 fixed in the revision. Another application was filed by the petitioner before the executing court intimating it that on 14.2.2011 the revision could not be taken up due to non availability of the Court and as such execution proceedings may be adjourned. This application of the petitioner has been rejected by impugned order dated 18.2.2011 and the executing court has fixed 5.3.2011 for possession of the accommodation in dispute to the landlord.
Admittedly, the petitioner has not complied with mandatory provisions of section 17 of the Provincial Small Cause Court Act by depositing the entire decreetal amount. He was granted interim stay in civil revision no. 5 of 2011 by the High Court subject to his depositing the entire decreetal amount alongwith damages and mesne profit within a period of three weeks from the date of the order but this direction has not been complied with by the petitioner. It was provided in the interim relief aforesaid granted by the High Court in civil revision no. 5 of 2011, that in case the petitioner fails to deposit the decreetal amount alongwith damages and mesne profit, then the interim order shall automatically stand vacated. The petitioner in those circumstances had moved the modification application. Admittedly also, the interim order stands vacated for non compliance of the conditions imposed therein by the petitioner though he has moved modification application. Thus, there was no legal impediment before the executing court to proceed with the execution case.
So far as the petitioner's prayer in paragraph no. 30 of the writ petition regarding undertaking is concerned, suffice it to say that interim order had been granted by the High Court in his favour in civil revision no. 5 of 2011 and if the petitioner was not able to comply with mandatory provisions of section 17 of the Provincial Small Cause Court Act, he could have given undertaking in the aforesaid revision at the time when interim order was passed in his favour. If such an undertaking would have been given, the Court may have considered the same. It appears that petitioner has moved the application giving undertaking before the interim order was to expire and not at the time when interim order was being passed. This Court would not be sitting in appeal against an interim order passed by the High Court in civil revision nor can issue any writ in that regard. My view is fortified by the decision rendered in Surya Dev Rai Vs. Ram Chander Rai and others ( 2003) 6 S.C.C.-675 ) wherein the Apex Court has held that a High Court cannot issue a writ to another High Court nor can one Bench of a High Court issue a writ to a different Bench and certainly not to the Supreme Court.
It is for the revisional court to have decided application of the petitioner wherein he has prayed for giving undertaking as the High Court in the revision had granted interim order in the revisional jurisdiction.
Thus, in the admitted set of facts, since the petitioner has not complied with mandatory provisions of section 17 of the Provincial Small Cause Court Act and there is no interim order operative in his favour, no interference is called for in the writ jurisdiction.
The writ petition is accordingly dismissed. No order as to costs.
Dt/-8.3.2011 SNT/