Allahabad High Court
M/S Lalit Commercial Complex vs Ashok Kumar Dubey Alias Shyam ... on 17 August, 2022
Bench: Vipin Chandra Dixit
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 9
Case :- S.C.C. REVISION No. - 115 of 2022
Revisionist :- M/S Lalit Commercial Complex
Opposite Party :- Ashok Kumar Dubey Alias Shyam Dubey
Counsel for Revisionist :- Girish Kumar Gupta,Suneeta Gupta
Counsel for Opposite Party :- Ashish Dutt Dubey,Udai Chandani
Hon'ble Vipin Chandra Dixit,J.
Heard Sri Girish Kumar Gupta, learned counsel for revisionist, Sri Udai Chandani, learned counsel appearing for respondent and perused the record.
This SCC revision has been filed by the plaintiff-revisionist against the order dated 20.4.2022 passed by learned Additional District Judge, Court No.1, Varanasi in Misc. Case No.944 of 2021 (Ashok Kumar Dubey Vs. M/s Lalit Commercial Complex), by which the application filed by defendant-respondent under Order 9 Rule 13 C.P.C. was allowed.
The brief facts of the case are that revisionist had filed a suit for eviction as well as recovery of outstanding rent against the defendant-respondent. The case was proceeded ex-parte against the defendant vide order dated 4.3.2021. The suit filed by revisionist being SCC Suit No.22 of 2020 was allowed ex-parte vide judgment and order dated 13.9.2021 and the defendant-respondent was directed to vacate the tenanted premises within a period of one month and also pay the arrears of rent and damages at the rate of Rs.30,000/- per month from 1.4.2020. The revisionist-plaintiff had also filed execution case which was numbered as Execution Case No.25 of 2021.
The defendant-respondent had moved an application under Order 9 Rule 13 C.P.C. along with delay condonation application for setting aside the ex-parte judgment and decree dated 13.9.2021 passed in SCC Suit No.22 of 2020. It is stated in the restoration application that summons were never served upon the defendant and he had no knowledge about the pendency of suit and only on 14.11.2021 he knew about the ex-parte order through a friend.
The plaintiff had filed objection to the restoration application as well as to the delay condonation application.
Learned court below after considering the objections raised by plaintiff-revisionist against the application filed under Order 9 Rule 13 C.P.C. found that the suit was decreed ex-parte and in the interest of justice the suit would be decided on merits after hearing the parties. Learned court below vide order dated 20.4.2022 had condoned the delay and allowed the application filed under Order 9 Rule 13 C.P.C. on payment of cost of Rs.500/-.
Being aggrieved with the order dated 20.4.2022, the present S.C.C. revision had been preferred by plaintiff.
It is submitted by learned counsel for revisionist that learned court below had committed illegality in allowing the application under Order 9 Rule 13 of C.P.C. without complying the provisions of Section 17 of Provincial Small Cause Courts Act, 1887.
On the other hand, learned counsel appearing for defendant-respondent has submitted that notice was never served upon the defendant and the defendant had no knowledge about the pendency of suit. It is further submitted that provisions of Section 17 of Provincial Small Cause Courts Act had fully been complied with. It is further submitted that the applicant had regularly paying the rent at the rate of Rs.35,400/- through bank transfer to the account of landlord and the said amount was paid upto 1.12.2020 thereafter the upper portion measuring 1700 square feet was surrendered and the rent of ground floor was settled at Rs.9,790/- for 650 square feet which was being continuously paid by the defendant and is accepted by the landlord upto 4.11.2021. It is further submitted that amount of rent was regularly paid by the tenant to the bank account of landlord. It is further submitted that plaintiff had concealed before the court below that area of first floor measuring 1700 square feet was surrendered and the rent as settled for ground floor at Rs.9,790/- for 650 square feet was regularly paid. The ex-parte decree was obtained by the landlord by concealing the material facts and by playing fraud upon the courts below. Lastly, it is submitted that defendant-tenant had already deposited Rs.50,564/- which is the admitted rent and was accepted by the landlord.
Considering the rival submissions of learned counsel for the parties and on perusal of record, it is apparent that suit filed by revisionist was decreed ex-parte without any notice or information to the defendant-respondent and the learned court below has rightly allowed the application filed by tenant-defendant under Order 9 Rule 13 C.P.C. and it is appropriate that suit would be decided on merits after hearing both the parties. There is no illegality in the order impugned and no ground for interference is made out.
However, since the SCC Suit No.22 of 2020 is pending since 2020, it is appropriate that learned Additional District Judge, Court No.1, Varanasi/concerned court to decide the SCC Suit No.22 of 2020 (M/s Lalit Commercial Complex Vs. Ashok Kumar Dubey alias Shyam Dubey), expeditiously in accordance with law after affording reasonable opportunities of hearing to the parties concerned, preferably within a period of one year from the date of production of certified copy of this order, without granting undue adjournments to either of the parties, unless there is any legal impediment.
With the aforesaid directions, the revision is disposed of.
Order Date :- 17.8.2022
Kpy
