- (1.) These are two petitions arising out of the same matter. As such, they are consolidated to be taken up for disposal by a common order as assented to by the learned Counsel for the parties.
(2.) Matrix of the facts is that Majid Ali, petitioner is Writ Petition No. 15312 of 1992, instituted a suit, it being suit No. 88 of 1988, in the court of Judge, Small Causes, Gorakhpur for the relief of eviction of the petitioner, Qazi Nemat Ullah from the suit premises and also for recovery of arrears of rent, damages and mesne profits. The suit ended in being decreed ex parte by means of the judgment and decree dated 7-10-1988 as a consequence of which, the decree holder was put in possession of the suit premises in execution of the decree, on 6-11-1989. An application under O. 9, R. 13 C.P.C. came to be filed by petitioner Qazi Nemat Ullah on 10-11-1989 seeking recall of the aforesaid decree granted ex parte. The application was allowed and the ex parte decree was set aside by means of the order dated 2-2-1991 on the finding that summons were not duly served on the defendant. This order dated 2-2-1991 was impugned in revision, which culminated in the order dated 2-2-1991 being reversed by the 6th Addl. District Judge, Gorkhpur by means of the judgment and order dated 29-7-1991 on the ground of non-compliance of the requirements of the proviso to Section 17(1) of the Provincial Small Cause Courts Act, 1887 (in short the 'Act'). It is the validity of this order that has been impugned in the present petition No. 24797 of 1991 by the tenant-petitioner, Qazi Nemat Ullah.
(3.) The other writ petition No. 15312 of 1992 has been filed by landlord-petitioner Majid Ali seeking the relief of quashing the orders dated 23-12-1991 and 6-4-1992 passed by the learned Judge, Small Causes Court, Gorakhpur and the learned District Judge, Gorakhpur respectively. By order dated 23-12-1991, the learned Judge, Small Causes Court, Gorakhpur allowed the restitution application filed on behalf of the petitioner, Qazi Nemat Ullah, on the dint of the order dated 2-2-1991 whereby the ex parte decree in the favour of the landlord was set aside, entailing restitution to the tenant of possession of the premises in dispute, which was taken by the landlord on 6-11-1989 on the basis of ex parte decree as stated supra.;