- (1.) Supplementary affidavit filed today on behalf of the petitioner, is taken on record. Learned counsel appearing for the respondents states that reply to the said affidavit is not required.
(2.) Heard Sri H.R. Mishra, Senior Advocate assisted by Sri Kamlesh Kumar Mishra, learned counsel appearing for the petitioner and Sri A.K. Pandey, learned counsel for the respondents.
(3.) The respondent/landlord IInd set filed a suit for eviction and arrears of rent before Small Cause Court at Gorakhpur being Suit No. 106 of 1993. The suit was decreed against the petitioner/tenant on 23 December 1998. The petitioner filed a restoration application under Order 9 Rule 13 of the Code of Civil Procedure on 23 November 2002 for setting aside the ex parte judgment and order. The petitioner admittedly did not deposit the entire decretal amount as required in terms of the proviso to Section 17 of the Small Causes Court Act, 1887(the Act 1887). On 8 September 2006, the restoration application was rejected by the Court on the ground that mandatory provision of proviso to Section 17 of the Act 1887 was not complied. On 4 January 2011, the petitioner moved another application (27-Ga) before the Small Causes Court, for recalling the earlier order dated 8 September 2006 and praying that the application under Order 9 Rule 13 of the C.P.C. be decided by permitting the petitioner to deposit the decretal amount. The Court vide order dated 16 April 2011 rejected the application being barred by res judicata.;