R.H.Zaidi, J. - (1.) THIS revision arises out of a suit for ejectment and recovery of arrears of rent and is directed against the judgment and order dated 11.9.2000 whereby application filed by the applicant for setting aside the ex -parte decree under Section 151, C.P.C. was dismissed by the Court below. The relevant facts of the case giving rise to the present revision, in brief, are that the respondent filed a suit for ejectment and recovery of arrears of rent amounting to Rs. 40,750/ - pleading that the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. XIII of 1972), for short the Act, were not applicable to the building in question as defendant -applicant wanted to delay the disposal of the suit. He was not co -operating with the proceedings of the suit and has been seeking adjournments on one or the other grounds. The Court below directed to proceed ex -parte. However, on an application made by the applicant, the said order was set aside and sufficient opportunity was granted to him to contest the suit on merits. Since the applicant was deliberately not co -operating with the proceedings as stated above, same was again directed to proceed ex -parte and it was on 19.02.1998 that the case was heard ex -parte and was ultimately decreed ex parte on 20.8.1999 by the Court below. The operative portion of the said judgment is quoted below:
(2.) INSTEAD of filing an application under Order 9 Rule 13, C.P.C., the applicant filed an application under Order 9 Rule 7, C.P.C. The said application was dismissed as not maintainable by the trial Court. Challenging the validity of the said order, a revision was filed by the applicant under Section 115, C.P.C. before this Court. This Court, after hearing the counsel for the applicant, dismissed the revision by its judgment and order dated 16.9.1999. The operative portion of the said judgment is quoted below: - - Since the suit was decided ex -parte the revisionist had remedy to file an application for setting aside the ex -parte decree assigning valid reasons, though the revision cannot be said to be barred on account of not seeking the alternative remedy. The revision has no force on merit. However, the revisionist may, if so advised, file an application for setting aside ex -parte decree along with prayer to condone the delay under Section 5/14 of the Limitation Act assigning valid reasons. In case the revisionist files such an application it may be decided on merits, despite the rejection of this revision. The revision is dismissed. The applicant immediately thereafter, did not file any application for setting aside the ex -parte decree dated 20.8.1999. The application under Section 151 C.P.C., was however, filed on 30.11.1999 along with an application under Section 5/14 of the Limitation Act. The application filed by the applicant to set aside the ex -parte decree was objected to by the contesting respondent pleading that no sufficient cause was shown by the applicant for condonation of delay in filing the application, that the application as framed and filed was legally not maintainable inasmuch as the provisions of Section 17 of the Provincial Small Causes Court Act were not complied with and the decretal amount was not deposited along with or before the application was filed. The application was, therefore, liable to be dismissed. The Court below, after dealing with the matter in detail and after examining each and every aspect of the matter, held that the delay in filing the application to set aside the ex -parte decree was not explained properly, that the application as framed and filed under Section 151, C.P.C., was legally not maintainable, the application, according to the Court below should have been filed under Order 9 Rule 13, C.P.C., and that the provisions of Section 17 of the Provincial Small Cause Courts Act have not been complied with. Having recorded the said findings, the Court below dismissed the application by its judgment and order dated 11.9.2000. The operative portion of the said order is quoted below:
(3.) LEARNED counsel for the applicant vehemently urged that under the facts and circumstances of the present case and in the interest of justice, the ex -parte decree should have been set aside by the trial Court. The said Court having dismissed the restoration application, has failed to exercise jurisdiction vested in it and that the judgment and order passed by the Court below was liable to be set aside.;