A.F.R.
Court No. - 19
Case :- S.C.C. REVISION No. - 352 of 2017 Revisionist :- Saloni Lal Opposite Party :- Mohit Counsel for Revisionist :- Shyam Surat Shukla
Hon'ble Manoj Kumar Gupta,J.
Learned counsel for the revisionist has filed an affidavit of service showing service of summons upon opposite party through his counsel in the execution case.
Service upon the respondent is accordingly held to be sufficient. Heard counsel for the revisionist.
The revision is directed against an order dated 21.11.2017, whereby Judge Small Causes/Additional District Judge, Court No.9, Ghaziabad has allowed the application filed by the tenant opposite party under Order 9 Rule 13 CPC upon payment of a cost of Rs.1000/- The exparte judgement dated 22.8.2017 passed in SCC Suit No.8 of 2017 has been set aside. The suit has been restored to its original number.
The brief facts of the case necessary for disposal of the instant revision are as follows:-
The plaintiff-revisionist instituted the suit mentioned above against the tenant-opposite party (for short 'the defendant') for recovery of arrears of rent and for eviction from building in his tenancy. The trial court issued notice to the defendant fixing 3.3.2017. The process server Raj Bahadur reported that the flat of the defendant was found locked. Consequently, he affixed the summons on the main gate of the flat. Again summons were sent to the defendant-tenant by speed post, but it was returned by the Postman with the endorsement that even after repeated visit to the address mentioned, the flat was found locked. Again effort was made to serve the defendant by speed post and this time, the Postman gave a report dated 18.3.2017 mentioning that the addressee was not found but members of his family refused to accept the summons, hence the same was returned. The trial court in the circumstances aforesaid, held the service upon the defendant as sufficient and proceeded exparte against him and ultimately decreed the suit by judgement dated 22.8.2017.
The defendant-tenant filed an application dated 21.9.2017 under Order 9 Rule 13 CPC seeking setting aside of the exparte decree. It was alleged that he came to know of the exparte decree for the first time when the plaintiff alongwith certain other persons came to his house and threatened to induct a new tenant. He, thereafter contacted his counsel, obtained certified copy of the impugned judgement on 16.9.2017 and filed the restoration application on 21.9.2017.
The restoration application was contested by the plaintiff- landlord by taking a specific plea that the service of summons upon the defendant was sufficient and that he had full knowledge of the suit instituted against him. It was also contended that the defendant-tenant had not complied with the requirements laid down under Section 17 of the Provincial Small Cause Courts Act, 1887 (for short ,the Act') and, therefore, the application was not maintainable.
The trial court in the impugned order has taken note of the facts stated above and thereafter, in the penultimate paragraph of the order it held that in view of the grounds taken in the restoration application, it is a fit case which should be heard on merits. Accordingly, the exparte decree has been set aside.
Counsel for the revisionist submitted that the impugned order is a non speaking order. It is submitted that without recording a finding that defendant was not served, it was not open to the trial court to set aside the exparte decree. It is also submitted that there was no compliance of mandatory provisions of Section 17 of the Act, consequently, the application itself was not maintainable.
Section 17 of the Act provides that a person applying for an order to set aside a decree passed exparte shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgement, or give such security for the performance of the decree or compliance with the judgement as the Court may, on a previous application made by him in this behalf, have directed.
In Kedar Nath Vs. Mohan Lal Kesarwani and others, 2002, (1) ARC 186, the Supreme Court has held that the requirement of depositing the decreetal amount or filing of application for furnishing security, is a mandatory requirement and unless the same is complied with, the restoration application could not be entertained on merits. In the impugned order, as noted above, despite a specific plea taken by the plaintiff-landlord that there was no compliance of Section 17 of the Act, the trial court has not examined the said issue at all. There is also no finding in the impugned order that there was any sufficient cause for non- appearance of the defendant before the trial court or that summons were not duly served upon him. It is well settled that an application under Order 9 Rule 13 CPC could not be allowed unless the court is satisfied regarding sufficiency of cause for non appearance.
Normally this Court does not interfere with an order directing a case to be decided on merits, but in view of the foregoing reasons, this Court is compelled to set aside the impugned order, which has been rendered in gross violation of the mandatory provisions of law.
The approach of the learned court below in deciding the restoration application is wholly casual and it dealt with the case in a slip-shod manner which cannot be countenanced in law. Accordingly, the impugned order dated 21.11.2017 is set aside. The matter is remitted back to the trial court to decide the restoration application afresh in the light of the observations made above.
The revision stands allowed to the extent indicated above.
It is desirable that the restoration application be decided expeditiously, preferably within a period of three months from the date of filing of a certified copy of this order.
(Manoj Kumar Gupta, J) Order Date :- 22.1.2019 SL