Rajes Kumar, J. - (1.) Present revision is directed against the order of Additional District Judge, Court No.10, Muzaffarnagar dated 17.09.2009, by which the application under Order IX, Rule 13, CPC filed by the revisionist for the recalling of the order dated 31.5.2005 has been rejected. Apart from the aforesaid application, other applications have also been rejected.
(2.) The brief facts of the case are that the revisionist was tenant of shop in dispute. The respondent/plaintiff filed SCC suit No. 22 of 2004 for the eviction and arrears of rent on the ground that the revisionist had committed default in payment of rent. Initially the notice was sent for the eviction, which has been refused and neither the rent has been paid nor the premises has been vacated, therefore, the suit has been filed. In the suit, the summons have been issued by the Court below. The revisionist refused to take the summons and, therefore, the service was treated as sufficient and the Court proceeded to decide the suit ex-parte. The suit was decided ex-parte vide order dated 31.5.2005. In pursuance thereof, the execution proceeding has been initiated and on 21.11.2006 the possession of the property in dispute has also been taken by the respondent. Thereafter, the revisionist filed an application under Order IX, Rule 13, CPC on 25.11.2006 for recalling of the order dated 31.5.2005. Three applications have also been filed namely, 61-C, 81-C and 83-C for the cross examination, opening of the envelope of papers, 19-C-1 and 19-C-2 to ascertains to whether contain the copy of the plaint or not Admittedly,, the decreed amount, Rs. 3,44,413/- has not been deposited nor any security has been furnished as required under Section 17 of the Provincial Small Causes Court Act, 1887 (hereafter referred to as the "Act") for the maintainability of the application under Order IX, Rule 13, CPC. Before the trial Court the revisionist pleaded that the provisions of Section 17 of the Act was not applicable as the decree has been obtained by fraud. The trial Court has held that the summons were issued, which have been refused twice. The service was found sufficient and Court below proceeded to decide the suit ex-parte. In the execution proceedings also the notices were issued, which have been refused. It has been further held that the suit has been decided in accordance to the prescribed procedure and, therefore, it can not be said that parties have committed any fraud. In the circumstances, it has been held that the mandatory requirement of Section 17 of the Act was required to be fulfilled for the maintainability of the application under Order IX, Rule 13, CPC and since the same has not been fulfilled the application was not maintainable. The other applications have also been rejected.
(3.) Heard Sri P.K. Jain, learned Senior Advocate assisted by Sri Amitabh Agrawal, learned counsel appearing on behalf of the revisionist and Sri K. Shailendra, learned counsel appearing on behalf of the respondent.;