- (1.) HEARD learned counsel for the petitioner and perused the record. Brief facts of the case are as follows:- The father of the petitioner Ghan Shyam was the tenant of the premises of the shop in dispute. Plaintiff-Landlord filed S.C.C. Suit No. 17 in the year 1996 against Ghan Shyam. The said suit was decreed exparte on 26.02.2002 against him. Ghan Shyam Das died on 11.11.2004. An application dated 29.01.2005 supported by an affidavit was filed for setting aside the exparte decree dated 26.02.2002 along with an application under Section 5 of the Limitation Act for condonation of delay in filing the application for setting aside the exparte order and also filed an application under the proviso 17(1) of the Provincial Small Causes Act, 1887 (in short 'the Act'). Both the applications filed by the petitioner were dismissed on 04.09.2010. Aggrieved by the order dated 04.09.2010, the petitioner filed two separate revisions before the revisional court and by order dated 15.03.2011, the revisional court dismissed both the revisions. Hence the present writ petition.
(2.) LEARNED counsel for the petitioner submitted that the court below has acted illegally and passed the order on surmises and conjectures and the court below ought to have condoned the delay in filing the application for setting aside the exparte decree. He further submitted that the petitioner had also filed an application on 29.01.2005 to furnish security under the proviso 17(1) of the Act. The suit was filed in the year 1996 which was decreed exparte on 27.01.2002. It has been admitted by the petitioner that he was staying along with his father as such it is unbelievable that the petitioner who was continuously staying along with his father till his death would be unaware about the suit proceedings which was decreed exparte on 27.01.2002 during the life time of his father. No plausible explanation has been given by the petitioner in support of his application for condonation of delay in filing the recall application. The petitioner has also not filed any documentary evidence in his support to indicate that his father remained seriously ill for about 11 months and was not in a position to move and understand things. Learned counsel for the petitioner has filed a supplementary affidavit, wherein he has stated that petitioner was not doing business in the shop in dispute with his father and was working in a Transport Company under the name and style of Shri Krishna Transport Service, 44 Dharam Vatika, Ambedkar Road, Ghaziabad. However, after the death of his father, he is carrying on his business from the disputed shop. The aforementioned fact goes to show that the petitioner was doing his independent business and had no concern with the said shop during the life time of his father. More so, the petitioner took inconsistent pleas before the Court below with regard to the compliance of Section 17 of the SCC Act and there was no compliance with the requirement of Section 17 of SCC Act. I do not find any illegality or infirmity in the impugned order given by the court below. In the result, the petition is dismissed. However, the counsel for the petitioner after obtaining instruction from his client has given an undertaking that he would vacate the premises within a reasonable time fixed by the Court and would also deposit the rent thereof. Accordingly, the petitioner shall hand over the vacant and peaceful possession of the disputed premises to the respondent landlord on or before 31st October, 2011 and would also deposit the entire rent for the period uptil 31st October, 2011 within a period of four weeks from today with the court below which shall be released in favour of the respondent-landlord. In case of default of depositing the rent, the decree shall be executed forthwith.;