Allahabad High Court
Khalid Majid vs Abrar Ahmad And 5 Others on 7 July, 2022
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 5
Case :- S.C.C. REVISION No. - 99 of 2022
Revisionist :- Khalid Majid
Opposite Party :- Abrar Ahmad And 5 Others
Counsel for Revisionist :- Abu Bakht,Faizan Siddiqui
Counsel for Opposite Party :- Manish Tandon
Hon'ble Salil Kumar Rai,J.
Heard the counsel for the parties.
This is a tenant's revision challenging the order dated 27.4.2022 passed by the Additional District Judge, Court No.03, District Kanpur Nagar in Misc. Case No. 14/74/2020 whereby the court below has rejected the delay condonation application filed by the revisionist to condone the delay in filing the application under Order IX Rule 13 of the Code of Civil Procedure, 1908 and has also consequently dismissed the application filed under Order IX Rule 13 of the Code of Civil Procedure, 1908.
The relevant facts of the case are that the respondents - landlords instituted Small Causes Case No. 74/17 for arrears of rent and eviction of the tenant from the suit property, i.e., Premises No. 43/222 Meston Road, Kanpur Nagar. The suit was decreed ex-parte against the tenant - revisionist vide judgment dated 28.3.2019 passed by the trial court, i.e., the Additional District Judge, Court No.07, Kanpur Nagar. In December, 2019, the revisionist - tenant filed an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 for recalling the decree dated 28.3.2019 and as the application was time barred, therefore, the revisionist - tenant also filed an application under Section 5 of the Limitation Act praying to condone the delay in filing the said application. On the aforesaid application of the revisionist, Misc. Case No. 14/74/2020 was registered in the court of Additional District Judge, Court No.03, District Kanpur Nagar. The Additional District Judge, i.e, the court below vide its impugned order dated 27.4.2022 has rejected the delay condonation application filed by the revisionist and, consequently, the application under Order IX Rule 13 of the Code of Civil Procedure, 1908.
During the course of arguments in the case, the counsel for the respondents has conceded that in the circumstances of the case, the delay condonation application filed by the revisionist - tenant was to be allowed but has opposed the revision so far as the court below vide its order dated 27.4.2022 has rejected the application under Order IX Rule 13 of the Code of Civil Procedure, 1908.
It has been argued by the counsel for the respondents that before allowing the application under Order IX Rule 13 of the Code of Civil Procedure, 1908, the court below is to consider the compliance by the tenant - revisionist of the proviso to Section 17 of the Provincial Small Cause Courts Act, 1887. It has been argued that the tenant - revisionist had not complied with the proviso to Section 17 of the Provincial Small Cause Courts Act, 1887 and, therefore, even if the delay condonation application is allowed, the application under Order IX Rule 13 of the Code of Civil Procedure, 1908 and, consequently, revision are still liable to be dismissed.
In its order dated 27.4.2022, the court below has not considered the compliance by the tenant of the proviso to Section 17 of the Provincial Small Cause Courts Act, 1887. The said factor has not been taken into consideration probably because the delay condonation application filed to condone the delay in filing the application under Order IX Rule 13 of the Code of Civil Procedure, 1908 has been rejected.
In view of the concession by the counsel for the respondents - landlords regarding the delay in filing the application under Order IX Rule 13 of the Code of Civil Procedure, 1908, the revision is allowed. The order dated 27.4.2022 passed by the court below in Misc. Case No. 14/74/2020 is, hereby, set-aside. The delay condonation application filed to condone the delay in filing the application under Order IX Rule 13 of the Code of Civil Procedure, 1908 stands allowed.
The matter is remanded back to the court below, i.e., the Additional District Judge, Court No.03, District Kanpur Nagar to pass fresh orders in Misc. Case No. 14/74/2020 on the application filed by the tenant under Order Order IX Rule 13 of the Code of Civil Procedure, 1908 after taking into consideration the proviso to Section 17 of the Provincial Small Cause Courts Act, 1887. The court below shall pass appropriate orders deciding the aforesaid application within one month from the date a certified copy of this order is filed before it.
With the aforesaid directions, the present revision is allowed.
Order Date :- 7.7.2022
Satyam
