Sanjay Misra, J. - (1.) HEARD Sri S.K. Srivastava, learned Counsel for the petitioner and Sri Sudhanshu Srivastava, learned Counsel appearing on behalf of the respondents. By means of this writ petition the petitioner seeks to challenge the judgment and order dated 16.4.1999 passed in SCC Revision No. 22 of 1987 by the VIIth Additional District Judge, Varanasi.
(2.) LEARNED Counsel for the petitioner has contended that the Suit No. 219 of 1971 filed by the petitioner for eviction and arrears of rent was decreed ex -parte on as many as eight earlier occasions and on each occasion, on the application of the respondent, the same was restored. The suit has again been decreed ex parte on 3.9.1986 against which the respondent tenants moved a restoration application. The Trial Court has found that there was compliance of section 17 of the Provincial Small Causes Court Act and has held that absence of the respondent on 3.9.1986 was not sufficiently explained inspite of the fact that on 1.8.1986 the case was directed to be proceeded ex -parte since after restoration of the suit the defendant was served notice and his Counsel had also been served with the notice, consequently the Trial Court has rejected the application. He submits that the Revisional Court while agreeing with the finding of the Trial Court with regard to compliance of section 17 of the Provincial Small Causes Court Act by the defendant has proceeded to illegally allow the revision on the sole ground that an opportunity of hearing must be given to the respondent and therefore it has set aside the order of the Trial Court and imposed a cost of Rs. 2,000/ - on the respondent and directed the Trial Court to decide the suit within three months. While assailing the finding of the Revisional Court learned Counsel for the petitioner has argued that the notices were issued by the Trial Court after the case was earlier restored and there was a report of the process server indicating refusal by the respondent. The Revisional Court has illegally held that service of notice on the respondent was not sufficient although its own findings is that the Counsel for the defendant was duly served with the notice after restoration of the suit. Reliance placed by the Court on the decision reported in, 1978 ARC 496 was erroneous and the opinion of the Revisional Court that interest of justice requires that further opportunity of hearing should be given to the defendant is illegal and is without considering the facts and circumstances of the case.
(3.) LEARNED Counsel for the respondent on the other hand has contended that the finding of facts recorded by the Trial Court while dismissing the application under Order 9, Rule 13, C.P.C. were rightly upset by the Revisional Court and in the absence of notice to the respondent the case could not have been decreed ex parte. He submits that the report of the process server was not proved in accordance with law hence no reliance could be placed upon it while holding service to be sufficient.;