Heard Sri Ravi Kiran Jain, Senior Advocate, assisted by Deeba Siddiquee, Advocate on behalf of the petitioner.
Original Suit No. 10 of 2000, instituted by the petitioner against the respondents to the present writ petition before the Judge Small Causes, was decreed ex parte on 31.10.2001. The judgment debtor filed an application under Order IX Rule13 for recall of the ex parte order. For compliance of the requirement of Section 17 proviso to the Small Causes Courts Act, the father of the defendant furnished his surety for satisfaction of the ex parte decree. This application was objected by the petitioner and he made an application (Paper No. 17-C) stating therein that acceptance of the surety of the father of the defendant to the suit in the facts of the case was unjustified and even otherwise illegal. This application of the landlord (Paper No. 17-C was rejected under the order dated 06th May, 2005 by the concerned court. The order has been permitted to become final and was not subjected to challenge by the petitioner landlord. Meaning thereby that the surety of the father of the defendant was found to be to the satisfaction of the court concerned.
The application under Order IX Rule 13 thereafter gave up for consideration before the trial court. The trial court by means of the order dated 27.02.2009 rejected the application under Order IX Rule 13 only on the ground that it was barred by limitation, after rejecting the application made under Section 5 of the Limitation Act.
Against the order so passed, the tenant filed a revision, being Revision No. 15 of 2009. The revision has been allowed vide order dated 19.04.2011. The Court has recorded that in the facts of the case Section 5 application did require reconsideration by the authority concerned and therefore after setting aside the order, rejecting the Section 5 application and the application under Order IX Rule 13 application as the barred, the Court has directed reconsideration of both the application in accordance with law. It is against this order that the landlord has approached this Court.
On behalf of the petitioner it is vehemently contended that the acceptance of the surety and the rejection of the objection of the petitioner, being Paper No. 17-C, under order dated 06th May, 2005 was patently illegal and consequently the application under Order IX Rule 13 itself was not maintainable for non-compliance of the requirements of proviso to Section 17 to Small Causes Courts Act. Therefore, the impugned order, directing the trial court to reconsider the applications under Section 5 of the Limitation Act and under Order IX Rule 13 C.P.C., is illegal.
I am of the considered opinion that the contentions so raised on behalf of the petitioner are misconceived. Order IX Rule 13 application had been rejected only on the ground that it was barred by limitation and such order has been passed after rejecting the Section 5 application filed along with the same. The revisional court under the impugned order has recorded cogent reasons for coming to the conclusion that the rejection of Section 5 application, filed along with Order IX Rule 13 application, was misconceived. It has set aside the order and has directed that Section 5 application and the application under Order IX Rule 13 C.P.C. be heard afresh in light of the observations made in the order of the revisional court.
Such orders of the revisional Court, which confer only an opportunity of hearing to the party afresh instead of permitting an order passed on technicalities to remain on record, are always welcome and even otherwise this Court finds no good ground to interfere with the order of the revisional court, impugned in the present writ petition, dated 19th April, 2011.
The present writ petition is therefore dismissed.
Although it was not necessary to express any opinion at this stage qua application under Order IX Rule 13 being incompetent for alleged non-satisfaction of proviso to Section 17 of Small Causes Courts Act, yet Sri Ravi Kiran Jain, counsel for the petitioner insisted that it was his case that the plea that the application under Order IX Rule 13 was not maintainable for non-compliance of proviso to Section 17 and further that the order dated 06th May, 2005 was illegal. Non-consideration of such objection in the impugned order makes it bad.
I am of the considered opinion that it is no open to the landlord to question an order which was adverse to him and was passed as early as on 06th May, 2005 in revisional proceedings which were filed by the tenant only in respect of rejection of his application under Section 5 of the Limitation Act and consequential rejection of application under Order IX Rule 13 being barred by limitation. The relief prayed for in the revision was limited to the issue, that in the facts of the case the order rejecting the Section 5 application was legally justified or not. By raising the objection qua legality of the order dated 06.05.2005 the landlord could not have been enlarged the scope of the revision filed by the tenant.
In any view of the matter, if the petitioner had any grievance against the order dated 06th May, 2005, he should have filed his own independent revision. The order, which has been permitted to become final, cannot be challenged in a collateral proceedings.
Order Date :- 25.5.2011 Pkb/