A.N.Dikshit, J. - (1.) THIS revision is directed against the judgment and order dated 27.2.1989 passed by Sri V.K. Verma, Xth Additional District Judge Bareilly allowing the application filed under Order 9 Rule 13 of the Code of Civil Procedure and setting aside the ex parte judgment and decree and restoring the case to its original number but imposing condition that the application is allowed on payment of Rs. 100/ - as costs and further the applicants were directed to deposit the entire decretal amount in the court by 31.3.1989. Heard the learned counsel for the parties. The learned counsel for the applicants Sri K.N. Tripathi has submitted that the imposition of this condition is too onerous and very harsh. Reliance has been placed in support of this submission in the case of Raj Kumar Soni v. M/s. Mohan Meakin Breweries Ltd. : A.I.R. 1979 Alld. 370. The learned counsel for the opposite parties Sri Navin Sinha has very strenuously submitted that the revision itself is not maintainable. It is very difficult to agree with this submission. Sri Navin Sinha has further submitted that the suit is pending since the year 1983 and the applicants are adopting dilatory tactics to stall the proceedings of the suit.
(2.) THE instant case has a very chequered history. On 20th of October, 1983 a suit for ejectment and arrears of rent was filed by the opposite parties which was registered as S.C.C. Suit No. 16 of 1983. Service could be effected on the applicants after a lapse of two years i.e. on 23.8.1985. Time to file written statement was granted on more than one occasion. On 14.1.1986 as no written statement was filed, the case was directed to be listed on 4.3.1986 for hearing. On 4.3.86 again none appeared for the defendants and 17.4.1986 was fixed for ex parte hearing of the case. On 17.4.1986 immediately after the orders were passed, the learned counsel for the applicants (defendants) appeared and filed two applications one for recalling the ex parte order and the other for the direction to the plaintiffs to furnish better particulars. Both the applications were rejected on the same day and the suit was decreed ex parte . On 1 -7 -86 an application under Order 9 Rule 13 of the Code of Civil Procedure was filed for setting aside the ex parte judgment and order decreeing the suit. The application under Section 5 of the Limitation Act was also filed. On 20th of March, 1987 the application filed by the applicant under Order 9 Rule 13 of the Code of Civil Procedure was dismissed in default. However, on 29.5.1987 the order dismissing the application under Order 9 Rule 13 of the Code of Civil Procedure was recalled and the application under Order 9 Rule 13 of the Code of Civil Procedure was directed to be listed for hearing on merits. On 20th of August, 1957 the application under Order 9 Rule 13 of the Code of Civil Procedure was dismissed after hearing the parties on merits. Aggrieved the applicants filed a Civil revision on 11.9.1987 in this Court. On the stay application the following interim order was granted: - - The ejectment of the applicants shall remain stayed from the premises in dispute till 12.10.1987 subject to the following conditions: - - (i) The applicants shall deposit the entire decretal amount including damage at the rate awarded until the month of September, 1987 by 15.10.1987. Any amount which may have already been deposited will be taken into account for the purpose of compliance of this condition. (ii) the applicants shall go on depositing future damages starting from the month of October, 1987 by the 15th October, 1987 by the 15th of the next month. (iii) The decree holder will be entitled to withdraw the amount so deposited. (iv) In case of default of any of the conditions laid down in this order, the same shall stand vacated automatically. S/d V.K.K. 11.9.1987
(3.) THE revision was disposed off on merits on 11.1.88. The revision was allowed. This court directed the court below to dispose of the application filed by the applicants under Order 9 Rule 13 of the Code of Civil Procedure (Misc. case No. 21 of 1986) on merits. The application was again dismissed in 19.12.1988. Again an application for recall of this order dismissing the application under Order 9 Rule 13 of the Code of Civil Procedure was filed on 8.1.1989. On this application the impugned order was passed.;