By means of the present revision, the revisionist is challenging the order dated 22.2.2011 passed by the Additional District Judge, Court No. 3, Shahjahanpur in Misc. Case No. 73 of 2010, rejecting the application filed under Order 9 Rule 13 of C.P.C. for setting aside the ex-parte judgment and decree dated 26.5.2010 in S.C.C. Case No. 1 of 2008, Hazi Jamilluddin Khan Vs. Rajesh Gupta.
The revisionist is a tenant in shop nos. 1 and 2 situate in Block 'B' Milan Market Kachcha Katra, Shahjahanpur on a rent of Rs.1,000/- per month. Hazi Jamilluddin Khan along with his brother Yaminuddin filed a suit being S.C.C. Suit No. 1 of 2008 before the Judge, Small Causes Court, Shahjahanpur against the revisionist for arrears of rent, damages and ejectment from the shops in question on the ground of default in payment of rent.
It appears that notice issued under Section 106 of the Transfer of Property Act has been held valid by the court on 4.9.2008 on the ground that registered letter sent on the correct address is not being received by the addressee. According to the revisionist, notice has not been served upon him and he has not put his appearance in the proceeding. The Judge, Small Causes Court vide its order dated 7.1.2009 directed to proceed ex-parte against the defendant fixing 6.2.2009 for ex-parte hearing. It appears that plaintiff no. 2 Yaminuddin died on 22.1.2008. The substitution application was allowed and heirs of Yaminuddin were substituted vide order dated 1.4.2009. Thereafter, the date of hearing has been adjourned on several occasions and ultimately an ex-parte decree was passed on 26.5.2010 against the revisionist.
It is the case of the revisionist that when he came to know about the ex-parte judgment and decree on 18.11.2010, inspected the record of S.C.C. Case No. 1 of 2008 through his counsel and filed restoration application supported with an affidavit on 19.11.2010. According to the revisionist, along with restoration application he submitted a tender for depositing the decreetal amount along with rent upto November, 2010 with costs, etc. total amounting to Rs.59,422/-, the tender was passed on 9.12.2010 and accordingly the amount of Rs.59,422/- has been deposited and in this regard an application has been moved on 9.12.2010. The objection was filed by the respondents to the restoration application. The Additional District Judge, Shahjahanpur vide impugned order dated 22.2.2011 rejected the restoration application on the ground that the story of inspection of record on 18.11.2010 is not believable and further the revisionist did not deposit the decreetal amount along with the restoration application filed on 19.11.2010. The court was of the view that it was not possible to get the file inspected on the same day i.e. on 18.11.2010 when the application for inspection was filed. Against the order of the Additional District Judge, Shahjahanpur dated 22.2.2011, the revisionist filed writ petition before this Court in which the following order has been passed :
"Learned counsel for the petitioner states that he has received instructions from his client not to press this writ petition. The writ petition is therefore dismissed as not pressed. Stay order if any, stands vacated.
Hon'ble Rakesh Tiwari, J.
15.4.2011"
Thereafter, the revisionist filed the present revision.
Heard Sri S.K. Mehrotra, learned counsel for the revisionist and Sri Ramendra Asthana, learned counsel appearing of the respondents-caveators.
The matter has been heard on 28.4.2011. Sri Ramendra Asthana, learned counsel for the respondents stated that he did not propose to file counter affidavit and therefore, the matter has been heard without counter affidavit and the judgment has been reserved.
Learned counsel for the revisionist submitted that under the wrong advice Writ Petition No. 14532 of 2011 has been filed. While against the order of the Judge, Small Causes Court, the revision was maintainable and, therefore, the writ petition was got dismissed as not pressed. He submitted that summon was not served upon the revisionist therefore, the revisionist was prevented by sufficient cause in putting his appearance in the suit. He submitted that ex-parte decree was passed on the basis of the order dated 4.9.2008 by which the court presumed service of the notice on the revisionist as proper service, whereas the court in its subsequent order dated 1.4.2009 has observed that there is no information about the service of notice on the defendant. He submitted that he has deposited the entire decreetal amount as well as rent upto November, 2010 with costs immediately after passing the tender which was filed on 19.12.2010 along with an application for restoration hence, the proviso to Section 17 of the Provincial Small Cause Court's Act was complied with. He submitted that in the case of restoration liberal and pragmatic view should be taken.
Sri Ramendra Asthana, leaned counsel for the respondents submitted that since against the impugned order Writ Petition No.14532 of 2011 has been dismissed as not pressed without any liberty to file revision, the revision is not maintainable. He placed reliance in the case of State of U.P. and others Vs. Public Service Tribunal, reported in 2003 (51) ALR 766- paragraph-16, West U.P. Sugar Mills Associate Vs. State of U.P., reported in 1994 AWC-94-paras-3, 31 and 32 and Shyam Narain Dwivedi Vs. State of U.P. and others, reported in 1999 (1) UPLBEC-513.
He submitted that proviso to Section 17 of the Provincial Small Causes Court's Act is mandatory and thus, it was obligatory on the part of the revisionist to move an application as required under the proviso for the deposit of the amount which has not been done. Reliance has been placed on the decision of the apex Court in the case of Kedar Nath Vs. Mohan Lal Kesarwani and others, reported in 2002 (1) A.R.C.-186 (SC). Reliance is also placed in the case of Jai Prakash Pandey Vs. Baboo Lal Jaiswal, reported in 2009 (3) A.R.C. and in the case of Har Kumar Vidyarthi Vs. Smt. Sudha Devi, reported in 2006 (3) AWC-2331 (LB). He further submitted that filing of tender along with an application for restoration amounts to the compliance if the amount has been deposited subsequently after the tender is being passed by the court.
I have considered the rival submissions and perused the impugned order.
I do not find any substance in the argument of learned counsel for the respondents that even for the deposit of the decreetal amount in cash the application is mandatory. In my view, the application is only required where instead of depositing the amount in cash the party intends to furnish the security. In none of the cases cited by the learned counsel for the respondents it has been held that it is obligatory to file an application even for the deposit in cash. The apex Court in the case of Kedar Nath Vs. Mohan Lal Kesarwani and others (Supra) has held that the proviso is mandatory and not directory. There is no quarrel about the said preposition of law. A plain reading of proviso shows that the application is necessary in case if the party wants to furnish the security in place of deposit of amount in cash. In the present case along with restoration application a tender form has been submitted and when the tender was passed the amount was deposited. In paras 9 and 10 of the affidavit, filed alongwith the revision, it has been stated that the restoration application supported by affidavit has been filed on 19.11.2010, and alongwith the restoration application, the applicant also submitted the tender for depositing the dereetal amount alongwith the rent upto November, 2010 with cost etc. amounting to Rs.59,422/= and prayed for passing the tender which was passed on 9.12.2010 and accordingly the amount was deposited on 9.12.2010. These averments have not been disputed by the learned counsel for the respondent. Therefore, the observation of the court below that the amount has been deposited late is not correct. Therefore, in my view, there was a compliance of the proviso to Section 17 of the Provincial Small Causes Court's Act.
So far as the recalling of the ex-parte order is concerned, the apex Court in the case of Mahendra Rathore Vs. Omkar Singh and others, reported in AIR 2002 SC-505 has held that a pragmatic and liberal view should be taken while considering the recalling application. A perusal of the impugned order reveals that there is no evidence to show that summon has been served upon the revisionist. The trial court on 1.4.2009 has observed that since then there is no information of notice to the defendant. The aforesaid fact establishes that the revisionist has not been informed about the suit in accordance to law and, therefore, the revisionist was prevented by sufficient cause in putting his appearance.
Now the question for consideration is that once the writ petition against the impugned order has been dismissed as not pressed without liberty to file a fresh writ petition whether this revision is maintainable. There is no dispute that against the impugned order revision is maintainable. The order dated 15.4.2011 is to be read in the context that the revision was maintainable against the impugned order but the writ petition was filed and, therefore, it could not be pressed. It is true that in the facts and circumstances, the second writ was not maintainable but if there was an alternative remedy by way of revision. In my view, the revision is maintainable and is to be considered on merit.
In the case of Sarguja Transport Service Vs. State Transport Appellate Tribunal, Gwalior and others, reported in AIR 1987 Supreme Court-88, the apex Court has held as follows:
"The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao's case (supra) is of no assistance. But we are of the view that the principle underlying R. 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however, leave this question open."
In the context of present case and in view of the law laid down by the apex Court, I am of the view that the dismissal of writ petition as not pressed without liberty to file a fresh writ petition will not be a bar to file the present revision.
In the result, the revision is allowed. The impugned order dated 22.2.2011 is set aside and the ex-parte order dated 26.5.2010 passed by the Additional District Judge, Court No. 3, Shahjahanpur in S.C.C. Case No. 1 of 2008 is recalled. It is restored to its original number. The revisionist is directed to file a certified copy of this order before the court concerned within three weeks and the court concerned is directed to proceed with the suit in accordance to law and decide the same expeditiously, preferably within a period of six months from the date of presentation of certified copy of the order. The parties are directed to cooperate in the proceeding and shall not seek unnecessary adjournment. The adjournment shall be subject to the cost of Rs.1000/=. It is made clear that no fresh notice or summon is required to be issued to the revisionist.
Dated: 31st May, 2011 OP