K. M. Dayal, J. - (1.) HEARD the learned counsel for the parties.
(2.) THE present petition has been filed against the judgment and decree passed by Sri Rama Nand Rai, Judge Small Cause Court, Gorakhpur in Suit No. 156 of 1975, confirmed by Sri S. C. Srivastava, Addl. District and Sessions Judge, Gorakhpur in Civil Revision No. 225 of 1975. The facts of this case are not only peculiar but they are astounding. A suit was filed by the predecessor-in-interest of plaintiff respondent nos.. 3 to 9. The suit was fixed for hearing on 1-9-1975. The case was called at about 10.30 in the morning. The defendant appeared and requested the court to permit him to call his counsel and file the written statement. He also informed the court that the written statement was being typed. The court detained him and examined him under Order 10 Rule 2 CPC and decreed the suit then and there. He did not permit the defendant to participate in the proceedings on the plea that he had not complied with the provisions of Order 15 Rule 5 CPC and could have no defence. The judgment of the Judge Small Cause Court is extremely criptic and does not deal with the questions raised in the case. The revisional court, however, dealt with the matter and confirmed the judgment. It held that as the defendant had not deposited the amount as required by Order XV Rule 5 CPC and in his examination by the court under Order X Rule 2 CPC he admitted that the rent was due, the decree was rightly passed against him. I am unable to understand as to what has happened to these two officers. Either the officers wanted to pass orders in total violation of the provisions of Civil Procedure Code or wanted to evolve a new procedure for their court. When the suit was fixed for filing written statement and hearing on 1-9-1975 and the defendant was present in the court he must have been permitted to call his counsel, file his written statement and deposit the rent as required by law. No defence could be raised as he was not permitted even to file the written statement and call his counsel. It has been averred in the writ petition that the rent had been tendered by the tenant but was refused by the landlord. Consequently there was no default. That is disputed in paragraph 6 of the counter affidavit. Any way as the case is to be remanded I need not express my opinion about the disputed facts. The courts below should have been guided by the procedure as per Civil Procedure Code and should not act in a haste or criptic manner. The defendant should have been permitted to file his written statement and only after that Order X Rule 2 could have come into operation for clarifying the pleadings. The courts below appear to have substituted the statements under Order X Rule 2 for the written statement itself, such a procedure cannot be permitted.
(3.) IT may further be pointed out that when a case is fixed for the written statement as well as the tender of the amount required by Order XV Rule 5 of the Civil Procedure Code the written statement could be filed and the amount could be deposited upto 4 P. M. i.e. during the court hours. Neither the amount tendered nor the written statement could be refused. As such the judgment and decree passed by both the courts below are totally vitiated. In the result, the present petition is allowed. The orders dated 1-9-1975, passed by Judge Small Causes Court and 12-1-1977, passed by the revisional court are both quashed. The Judge Small Cause Court is directed to restore the case to its original number and decide the same in accordance with law after affording due opportunity of hearing to the parties. There will be no order as to costs. Petition allowed.;