PRAKASH KRISHNA,J. - (1.) THE present revision has been filed by the defendant-tenant against the order dated 8.7.2003 passed by the District Judge, Kanpur Nagar in Misc. Case No.255/74 of 2003 whereby the Court below has rejected the application filed by the defendant-tenant under Order 9 Rule 13 CPC for recalling the ex parte judgement dated 27.2.2003 passed in SCC Suit No. 53 of 2002.
(2.) BABOO Lal Jaiswal, the opposite party herein (hereinafter called as landlord) instituted SCC Suit No.53 of 2002 against Jai Prakash Pandey the applicant herein, called as tenant hereinafter, for recovery of arrears of rent, damages and ejectment in respect of two shops on the ground floor of Premises No. 133/266-P-1 Transport Nagar, Kanpur. The suit was instituted on the pleas inter alia that the said shops were let out to the tenant on a monthly rent of Rs.1, 000/- whose tenancy has been determined by means of a notice dated 8.10.2002 sent through Shri Sanjay Dixit, Advocate. The tenant inspite of the service of the notice to quit failed to pay the arrears of rent due from him for the period 1.2.2000 to 30.9.2002 amounting to Rs.32, 000/- besides house tax and drainage tax. 23rd December 2002 was the date fixed in the suit for filing the written statement. The tenant appeared on that date and sought for and was granted adjournment for filing the written statement and 13.1.2002 was the next date on which date also the suit was adjourned on the request of the defendant and 18.1.2003 was the next date fixed. On 18.1.2003 again adjournment was sought for and was granted fixing 1.2.2003. On 1.2.2003 again adjournment was sought for but was refused by the trial court on the ground that the defendant-tenant has not paid the cost as was awarded on the earlier occasion. However, it fixed 26.2.2003 for recording of ex parte evidence. The evidence was recorded on that date and the suit was ultimately decreed ex parte on 27.2.2003. An application under Order 9 Rule 13 CPC dated 21.3.2003 supported with an affidavit was filed by the tenant to set aside the ex parte judgement and decree dated 27.2.2003 on the ground that the tenant was prevented by sufficient cause as he was confined to bed and was under medical treatment. He could not instruct his counsel to file the written statement. It was stated that he is an old person and was suffering with various ailments and again fell ill on 20.1.2003 and therefore he could not appear on 1.2.2003 and gave the information of the illness through telephone to his counsel. In the affidavit, it has been mentioned that he is enclosing the medical certificate of Dr. Shiv Mangal Singh (but the Court has found that no such medical certificate was enclosed along with the affidavit). Along with the above application, an application for staying the execution of the ex parte decree was filed wherein besides the plea of his illness, it was stated that in the light of the ex parte judgement, the tenant is enclosing a tender for Rs.20, 000/- and is prepared to pay the security for the balance amount. It also appears that another application was filed praying that a report from the concerned Clerk as to how much amount is required to be deposited may be called for so that the applicant may comply with the provisions of Section 17 of the Provincial Small Causes Court Act.
(3.) THE said application was contested by the landlord by filing counter affidavit on the ground that the tenant was not prevented by any sufficient cause and the cause shown in the application for setting aside the ex parte decree is concocted and bogus. It was further stated that the tenant has not deposited the requisite amount as required under Section 17 of the Provincial Small Causes Court Act and as such the application is liable to be dismissed. The Court below by the impugned judgement dated 8.7.2003 dismissed the application of the tenant on two counts. Firstly, the tenant has failed to prove that he was prevented by sufficient cause in not filing the written statement for contesting the suit on merits. The tenant has taken contradictory pleas and no reliance can be placed upon the affidavit filed in support of the application. Moreover, it was observed that the medical certificate has not been annexed as a part of the affidavit although it mentions so. The tenant has not been able to prove his illness and the medical certificate has not been proved. It has noticed the various inconsistent and improbable pleas raised in the different paragraphs of the affidavits. Secondly, the application is not maintainable as there is no compliance of provisions of Section 17 of Provincial Small Causes Court Act, which is mandatory. Challenging the aforesaid order, the present revision has been preferred. Shri Kushal Kant, learned counsel for the applicant has challenged the judgement of the court below only on the question of compliance of Section 17 of the Provincial Small Causes Court Act. He submits that in all the tenant has deposited a sum of Rs.45, 000/- out of which Rs.20, 000/- was deposited on 21.3.2003 and Rs.25, 000/- was deposited subsequently on 19.4.2003. The submission is that the tenant has substantially complied with the provisions of Section 17 of the said Act. His bonafide is further established from the fact that he had filed an application before the trial Court praying that the office be directed to calculate the decretal amount which may be deposited by the tenant without any further delay. The Court was taken through the undated application termed as stay application and the affidavit filed in support thereof being page 66 to 68 of the paper book. Reference was also made to the application of March 2003 (day is missing) on page 69 of the Paper Book wherein it has been prayed that a report from the concerned clerk with regard to the amount required to be deposited may be called for so that the statutory compliance can be made within time. The learned counsel for the landlord, on the other hand submits that the Apex Court in the case of Kedar Nath versus Mohan Lal Kesarwari and others 2002(1) ARC 186 has held that the provisions of Section 17 of the Provincial Small Causes Court Act are mandatory in nature and non compliance would entail dismissal of the application and such non compliance cannot be condoned or overlooked by the Court. Elaborating the argument, he submits that if in the ex parte judgement, the suit for recovery of arrears of rent amounting to Rs.33, 300/- and Rs.200/- as arrears of damages and for recovery of pendente lite and future damages till the date of actual possession is decreed. This being so, there is no justification for non depositing the said amount at least.;