Shashi Kant Gupta - (1.) THIS revision is directed against the order dated 6.7.1985, passed by First Additional District Judge, Meerut in Misc. Case No. 34 of 1984 whereby the application of the revisionist for setting aside ex-parte decree has been rejected with costs for non-compliance of proviso to Section 17 of Provincial Small Cause Courts Act (hereinafter referred to as the Act).
(2.) THE background facts in a nutshell essentially are as follows : The revisionist was a tenant of the disputed shop in question at a monthly rent of Rs. 175 per month. Suit No. 20 of 1984 for arrears of rent and ejectment was filed by the plaintiffs opposite parties. The defendant was served by publication, but he did not turn up to contest the suit. The plaintiff's suit for arrears of rent and ejectment was decreed on 18.8.1984. The operative portion of the order dated 18.8.1984 is quoted below : "The plaintiffs suit for the recovery of arrears of rent, interest and costs of service of notice for damages for use and occupation till 4.3.1984 and for ejectment of the defendant as prayed, is decree ex parte with costs. The plaintiffs are, however, entitled to pendente lite and future damages for use and occupation at the rate of Rs. 175 per month alone upon payment of court fee in the execution department." An application for setting aside ex parte decree passed in S.C.C. Suit No. 20 of 1984 was filed under Order IX, Rule 13, C.P.C. The said application was dismissed by judgment and order dated 6.7.1985 for non-compliance of proviso to Section 17 of the Act. Hence, the present revision. It is submitted by the learned counsel for the revisionist that the applicant was never served with the summon of the case and he came to know of the proceeding on 26.8.1984 for the first time and he appeared and moved an application for setting aside the order to proceed ex parte, but the application was rejected on technical ground. Hence, the application for setting aside the decree was filed by the applicant. Impugned order was passed by the court below mainly on the ground that the entire decretal amount as awarded under the decree was not deposited, as such proviso to Section 17 (1) of the Act was not complied with. Learned counsel for the applicant has submitted that Rs. 8,000 was deposited by the applicant towards the decretal amount due under the decree, but has admitted that there was a short fall of Rs. 800 in depositing the entire decretal amount.
(3.) LEARNED counsel for the applicant-revisionist has submitted that the decree was passed on 18.8.1984 and thereafter he moved an application for setting aside the decree on 23.8.1984. The deposit of the entire decretal amount was not made as the decree was not prepared till then. He moved an application for preparation of the decree and presented tender of Rs. 8,000 on 17.9.1984 and the said amount was deposited on 20.9.1984. It was further submitted that the entire decretal amount could not be deposited since it was not specifically mentioned in the decree, as such on account of mis-calculation, correct decretal amount could not be deposited. However, the substantial compliance of proviso to Section 17 of the Act was made. Thus, therefore the court below has committed a manifest error of law in passing the impugned order. On the other hand learned counsel for the landlord has supported the impugned order passed by the court below and has submitted that deficiency in depositing the decretal amount was of around Rs. 1,145 and, as such, it cannot be said that substantial compliance of the proviso to Section 17 of the Act was made. It was submitted that the applicant was avoiding the Court in order to prolong the proceeding and despite publication of the notice in the newspaper he did not appear before the court below on the date fixed. As such the Court had no other option but to proceed ex-parte. Learned counsel for the plaintiff opposite party has contended that the proviso to Section 17 of the Act is mandatory in nature and admittedly there was short fall in depositing the entire decretal amount and the court below was fully justified in rejecting the restoration application for want of compliance of Section 17 of the Act.;