Rakesh Sharma, J. - (1.) HEARD Sri Vishnu Sahai, learned Counsel for the Petitioner and Sri Ajay Kumar Singh representing the Respondent.
(2.) THE Petitioner has assailed the judgment and order passed on 19.9.1997 in S.C.C. Suit No. 27 of 1990 and affirmed by the Addl. District Judge, Court No. 2, Muzaffar -nagar in S.C.C. Revision No. 32 of 2000 in respect of a tenanted betel shop situate at main market/Mandi area in the city of Muzaffarnagar in western U. P. It emerges from the record that the Respondent Arya Samaj, Nai Mandi, Muzaffarnagar, landlord filed S.C.C. Suit No. 27 of 1990, Arya Samaj v. Ramesh Chand Jain, in the court of Judge, Small Causes for ejectment of the tenant from the disputed betel shop on the ground that the Petitioner had made material alteration in the rented shop. The suit was decreed ex parte on 19.9.1997. This order was challenged under Order IX, Rule 13, Code of Civil Procedure and under the provisions of Section 17 of Provincial Small Causes Court Act (briefly, the Act). The application for setting aside the ex parte decree was dismissed by the order dated 12.3.1999 with the finding that the Petitioner had not complied with the relevant provisions as indicated in Section 17 of the Act. A revision was preferred which was also dismissed by the revisional court on 22.9.1999 re -iterating the same views which were recorded by the trial court.
(3.) AGAINST the above judgment, the Petitioner filed a Writ Petition No. 46082 of 1999, Ramesh Chand Jain v.I Ind Additional District Judge, Muzaffarnagar and others, in which an interim order was granted. However, as per directions contained in the interim order passed in that writ petition, the Petitioner had deposited the entire decretal amount and rent etc. However, the aforementioned Writ Petition No. 46028 of 1999 was dismissed on 21.4.2000. For convenience, the judgment and order passed in that writ petition by this Court is quoted below: The Plaintiff -Respondent No. 3 filed Suit No. 27 of 1990 in the court of Judge, Small Causes for recovery of arrears of rent, ejectment and damages with the allegations that the Petitioner was tenant of the disputed shop at monthly rent of Rs. 50. He made material alterations. A notice dated 10.10.1990 was given to the Defendant which was served upon him on 17.10.1990 but inspite of service of notice he did not comply with the same. The tenant -Petitioner filed written statement and denied the averments made in the plaint. The Defendant subsequently did not appear in the case and the Court directed to proceed ex parte and decreed the suit on 19.9.1997. The Petitioner filed an application on 6.10.1997 to set aside the said decree with the allegation that on the date of hearing he was confined to bed and was unable to appear in the case. He did not file an application under Section 17 of the Provincial Small Causes Court Act (in short, the Act) for depositing any amount as provided in the said section. The Judge, Small Causes Court rejected the said application on 12.3.1999 on the ground that the Petitioner failed to comply with the provisions of Section 17 of the said Act. The Petitioner preferred a revision and the revision has been dismissed by the impugned order dated 22.9.1999. I have heard Sri R. B. Singhal, learned Counsel for the Petitioner and Sri Pramod Kumar Jain, learned Counsel for the contesting Respondent. Learned Counsel for the Petitioner contended that the provisions of Section 17 of the U. P. Provincial Small Causes Courts Act are directly in nature as the intention of the Legislature is that the decretal amount should either be paid or sufficient security in the compliance of the decree be given before any ex parte decree is set aside and the amount can be deposited at any stage. This submission should have been accepted provided the Petitioner had deposited the decretal amount before the Court passed the order on the application of the Petitioner to set aside the ex parte decree or even if he had filed an application asking the Court to permit him to furnish security. He has placed reliance upon the decision Khursheed v. 1st Additional District Judge, Moradabad and others, 1988 AWC 1366, wherein the observation was made that the proviso of Section 17 of the Provincial Small Causes Courts Act using the 'previous' application is not mandatory but only directory. This case has no application to the facts of the present case. The Petitioner therein had filed an application to set aside the ex parte decree on 10.12.1982 and made an application on 20.12.1982 under the proviso to Section 17 of the Act for permission to furnish security for performing the decree as required by Section 17 of the Act. It was not a case where the applicant had not taken steps under the proviso to Section 17 of the Act. It is further contended that the Petitioner has deposited the decretal amount in pursuance to the order passed by this Court on 5.11.1999. The mere fact that the Petitioner has deposited the decretal amount in pursuance to the order of this Court will not make the order illegal passed by the courts below when the Petitioner had not complied with the requirement under the proviso to Section 17 of the Act before hearing the matter before the trial court. In view of the above, the writ petition is dismissed. In the end, learned Counsel for the Petitioner prayed that some time may be granted to the Petitioner to vacate the disputed premises. Considering the facts and circumstances of the case, the Petitioner is granted six months' time to vacate the disputed premises provided he gives an undertaking on affidavit before the trial court within two weeks from today that he will vacate the disputed premises within the time granted by this Court and would hand over its peaceful possession to the landlord -Respondent No. 3.;