V.K.Shukla - (1.) PREM Chandra Mishra, landlord of the premises in question has filed present writ petition questioning the validity of the order dated 30.10.1995 passed by II Additional District Judge, Etah allowing Revision No. 6 of 1994 filed by the tenant Satya Prakash Sharma by setting aside order dated 11.4.1994 passed by Judge Small Causes/Additional Civil Judge, Etah in S.C.C. Misc. Case No. 1 of 1993 and directing for fresh decision in accordance with law on the question of compliance of provisions of Section 17 of Provincial Small Cause Courts Act, 1887.
(2.) BRIEF background of the case is that suit for arrears of rent and ejectment was filed by the petitioner against the tenant concerned Satya Prakash Sharma being J.S.C.C. Suit No. 1 of 1993. In the said proceedings tenant entered appearance and filed his written statement and also deposited Rs. 5,200 on the first date of hearing. On 27.4.1993 an order was passed to proceed ex parte against the tenant concerned fixing 17.5.1993 for final hearing. On 17.5.1993 an application was moved on behalf of petitioner seeking permission from court for filing affidavit in the shape of evidence on 17.5.1993. Application was moved by tenant for recalling of the order dated 27.4.1993. On the said application which was moved on 17.5.1993 for recalling of the order dated 27.4.1993, next date fixed was 22.5.1993. On 22.5.1993 application moved on behalf of tenant was rejected and ex parte decree was passed for eviction. Tenant in question moved an application under Order IX, Rule 13, C.P.C read with Section 151 of C.P.C on 24.5.1993. Said application in question was objected to by petitioner Prem Shanker Mishra and it was also contended that application moved is not in compliance with the proviso of Section 17 of Provincial Small Causes Court Act, and compliance ought to have been made within thirty days. Satya Prakash Sharma on 25.2.1994 moved an application, 21C stating therein that he had already deposited the entire arrears of rent, costs of the suit and interest in J.S.C.C. suit much earlier before passing of ex parte decree, and some amount has been deposited under Order XV, Rule 5 of C.P.C. This application was objected to by petitioner. Judge Small Causes rejected the said application of tenant. Tenant in question preferred J.S.C.C. Revision No. 6 of 1994 and Additional District Judge, Etah has set aside the order passed by Judge Small Causes and remitted the case back to be decided afresh in accordance with law. At this juncture present writ petition has been filed. Counter-affidavit has been filed contending therein that the decision which has been taken is rightful decision in the fact of the present case and as matter has been remanded back as such no interference be made. Rejoinder-affidavit has been filed disputing the averments mentioned in the counter-affidavit and taking categorical stand that application which has been filed for setting aside ex parte decree was illegal, incompetent and not maintainable under the First Proviso to Section 17 of Provincial Small Cause Courts Act 1887, as such orders passed by Revising Authority is liable to be quashed.
(3.) AFTER pleadings mentioned above have been exchanged present writ petition has been taken up for final hearing and disposal with the consent of the parties. Sri H. M. Srivastava, advocate appearing for petitioner alongwith Sri Neeraj Srivastava, advocate contended with vehemence that in the present case application which has been moved on behalf of the petitioner under Order IX, Rule 13, C.P.C on the face of it is not at all competent and maintainable as condition to make deposit of amount due under the decree or giving security imposed by proviso to Section 17 (1) of the Act is mandatory and same has not at all been complied with on admitted position and revisional court has totally transgressed and over stepped its jurisdiction has misdirected itself while remanding the matter and such action is in the teeth of the judgment of Hon'ble Apex Court in the case of Kedarnath v. Mohan Lal Kesarwari and others, AIR 2002 SC 582 : 2002 (1) AWC 502 (SC), as such writ petition in question deserves to be allowed.;