- (1.) R. H. Zaidi, J. Heard learned Coun sel for the parties and also perused the record.
(2.) THE present petition arises out of a suit for ejectment and recovery of rent filed by the petitioner and is directed against the judgments and orders passed by the Court below dated 3-11-1999 and 2-11-1993. It appears that on 10-4-1992 the petitioner filed a suit for ejectment and recovery of arrears of rent, which was registered as S. C. C. Suit No. 78 of 1992, against the contesting respondent No. 2. The said suit was filed on the ground of default in payment of arrears of rent. Notices summonses were issued by the trial Court to the contesting respondent. He put in appearance but did not file writ ten statement in spite of the opportunity granted by the trial Court. The trial Court, therefore, directed the suit to proceed ex parte and ultimately the suit was decreed ex pane by judgment and decree dated 2-11-1993. Challenging the validity of the said judgment and decree, the contesting respondent filed an application under Order IX, Rule 13 of the Code of Civil Procedure, on 30-11-1993. The said ap plication was also dismissed for default on 5-1-1994. Thereafter, another application was moved for recalling the order dated 5-1-1994 on the same date, which was al lowed on 8-1-1994. Against the applica tion filed by the contesting respondent under Order IX, Rule 13, C. P. C. objection was filed by the petitioner contending that provisions of Sections 17 of the Provincial Small Cause Courts Act, for short the Act, were knot complied with, therefore, the said application was liable to be dismissed. On the other hand, it was contended by the contesting respondent that the provisions of Section 17 of the Act were substantially complied with and the amount in ques tions was also deposited within thirty days of the order passed by the trial Court, therefore, the application was liable to be allowed. It was on 10-10-1994 that the restoration application was again dis missed but thereafter the said order was recalled on 17-10-1994. The said applica tion is stated to have been again dismissed on 11-9-1996 but the said order was also recalled on 1-2-1997. It was on 27-9-1997 that an application was moved for con donation 01 delay occurred in compliance of the provisions of Section 17 of the Act. The said application was objected too and opposed by the petitioner. The trial Court upheld the objection raised by the petitioner and dismissed the application under Order IX, Rule 13, C. P. C, by judg ment and order dated 16-10-1999 for non-compliance of the provisions of Section 17 of the Act. Challenging the validity of the judgment and order dated 16-10-1999, the contesting respondent filed a revision. The said revision was allowed by the judgment and order dated 3-11-1999. Hence the present petition. Learned Counsel for the petitioner submitted that it is evident from the evidence on record that the contesting respondent failed to comply with the provisions of Section 17 of the Act, which are mandatory in nature, and failed to deposit the amount in question alongwith the application filed by him under Order IX, Rule 13 of the Code of Civil Procedure and also failed to make any application under Section 17 either to furnish security or for condonation of delay within the time prescribed under the law, the Court below erred in law in allowing the revision and setting aside the order passed by the trial Court.
(3.) LEARNED Counsel appearing for the contesting respondent submitted that the application under Order IX, Rule 13, C. P. C. , was filed within the time prescribed under law, Le. , 30-11-1997 and the amount which was required to be deposited under Section 17 of the Act was also deposited within thirty days of the order by which the suit was decreed ex parte. Therefore, the revisional Court was right in allowing the revision and setting aside the order passed by the trial Court. I have considered the statement made by the learned Counsel for the par ties and also perused the record.;