- (1.) Heard Sri Siddharth Nandan, learned counsel for the petitioner. This writ petition has been filed for issuing a writ of certiorari quashing the order dated 11.9.2014 passed by the District Judge, Gorakhpur, by which the petitioner's application for furnishing security, as required under the proviso to Section 17 of Provincial Small Cause Courts Act, 1887 (hereinafter referred to as the Act") has been rejected. While assailing the impugned order, learned counsel for the petitioner contends that the learned District Judge has erred in rejecting the petitioner's application without assigning any reason. In his submissions, for entertaining an application under Section 17 of the Act for setting aside an ex-parte decree, according to the proviso, the applicant is required either to deposit the amount due from him under the decree in cash, or to give such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed. In his submissions, for satisfying the decree, the legislature has given two options subject to the satisfaction of the Court (i) either to deposit the entire decreetal amount in cash (ii) or to furnish security on an application by the applicant as directed by the Court and once the alternate mode is provided under the statute, the Court concerned while exercising its discretionary power must apply his mind before refusing the mode as prayed for by the applicant and directing the party to adopt particular mode. In his submissions, here the petitioner has filed the application praying the Court to permit him to furnish the security because of his very weak financial position as he happens to be a scooter repairing mechanic and will not be able to deposit the entire amount in cash. In that eventuality the Court, vested with the discretionary power, had to exercise its discretion in a judicious manner but here in this case, the learned Judge without adverting to the reasons as stated in the application for seeking permission of the Court to furnish security has outrightly rejected the application with the direction to deposit the entire amount in cash. In his submissions, the learned Judge has failed to exercise his discretion vested in him in a judicious manner by not recording any reason while rejecting the petitioner's application seeking permission to furnish security. In support of his submissions, he has placed reliance upon the judgment of the Apex Court in Haji Ahmed v. Abdul Hussein,1931 45 ILR 780 and the decision of this Court in Qazi Nemat Ullah v. VIth Additional District Judge Gorakhpur and others, 1993 1 ARC 151.
(2.) I have heard learned counsel for the petitioner and perused the record. The facts giving rise to this case are that the respondent has filed SCC Suit No. 27 of 2013 seeking eviction of the petitioner on account of default in payment of rent including house tax and water tax. In this suit, on the basis of publication of notice in the newspaper, the service was deemed to be sufficient upon the petitioner. On 21.5.2014, an order was passed to proceed ex parte. Thereafter the suit was also decreed ex parte on 28.5.2014 assessing the rent to be Rs. 1500/- per month alongwith house tax, water tax liability with 18% interest. The Court has also awarded compensation of Rs. 36,000/- alongwith 9% interest till the date of the delivery of possession.
(3.) Thereafter Execution Case No. 93 of 2014 was filed and it is thereafter the petitioner came to know about the ex parte decree, on 10.9.2014 and immediately thereafter, he has filed an application under Section 17 read with under Order IX, Rule 13 of Code of Civil Procedure for setting aside the ex parte decree. Alongwith the application, the petitioner has also filed an application praying the Court to permit him to furnish security stating therein that the applicant has no cash in hand for satisfying the decree as his only source of earning is repairing of the scooter being mechanic, therefore he may be permitted to furnish security of Rs. 1,0,5000/-. The learned Judge, without adverting to the facts as stated in paragraphs 3 and 4 of the application, has passed the impugned order.;