Allahabad High Court
Subhash Chandra vs Ravindra Kumar Rathor on 25 August, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No:- 2025:AHC: 146556
Court No. 37
Reserved on: 28.7.2025
Delivered on: 25.8.2025
Matters Under Article 227 No.9133 of 2022
Petitioner :- Subhash Chandra
Respondent :- Ravindra Kumar Rathor
Counsel for Petitioner:- Dr. S.B. Singh
Counsel for Respondent :- Mr. Puneet Bhadauria
Hon'ble Chandra Kumar Rai,J.
1. Heard Dr. S.B. Singh learned counsel holding the brief of Mr. Anand Kumar Srivastva, learned counsel for the petitioner and Mr. Puneet Bhadauria, learned counsel for the respondent.
2. Brief facts of the case are that respondent is owner / landlord of House No- 148-B, Panki Road, Kalyanpur, Kanpur Nagar and petitioner is tenant of shop No-1, situated at ground floor of the aforementioned house. Landlord / Respondent has sent a notice dated 4.1.2019 to Tenant / Petitioner under section-106 of Transfer of Property Act, 1882 (for short the Act), terminating the tenancy of Tenant / petitioner from the shop in question on the ground of personal need. Tentant / Petitioner replied the notice dated 4.1.2019 through his reply stating that need of landlord in not bonafide. Petitioner / Tenant instituted a S.C.C. Suit before Judge, Small Cause Court for possession of the shop in question and damages which was registered as S.C.C. Suit No. 157 of 2019. On 21.5.2019, summon was issued to petitioner / tenant fixing 23.7. 2019 for written-statement. No appearance was made by defendant / tenant, accordingly, an application -15 Ga was filed in aforementioned S.C.C. Suit to take steps by publication. Judge, Small Cause Court vide order dated 13.1.2021 allowed the application- 15 Ga, accordingly, publication was made and Judge, Small Cause Court vide order dated 26.2.2021 held the service sufficient upon the defendant / tenant / petitioner and fixed 12.4.2021 for written-statement. Nobody appeared in S.C.C. Suit No.157 of 2019 and case was adjourned on several dates. Judge, Small Cause Court ultimately on 9.7.2021, proceeded ex parte against defendant / tenant / petitioner fixing 3.9.2021 for ex parte evidence. On 3.9.2021, plaintiff / landlord / respondent filed evidence (paper no-17Ga) which was kept on record and 2.11.2021 was fixed for ex parte hearing. On 2.11.2021, Judge small cause, heard the plaintiff / landlord/ respondent and fixed 8.11.2021 for ex parte judgment. The Judgment was not delivered on 8.11.2021, accordingly, 20.11.2021 was fixed. On 20.11.2021, another date 6.1.2022 was fixed. On 6.1.2022, application 24 Ga under Order 9 Rule 7 of Civil Procedure Code was filed on behalf of defendant/tenant/petitioner for recall of the order dated 9.7.2021. Plaintiff/landlord/respondent filed his objection dated 28.4.2022 to the application dated 24 Ga filed by tenant. Judge, Small Cause Court Vide order dated 19.7.2022 rejected the application-24Ga and fixed 20.7.2022 for ex parte judgment. On 20.7.2022, Judge, Small Cause Court vide ex parte judgment dated 20.7.2022, decreed the plaintiff's suit for possession of the shop in question as well damages at the rate of Rs.3150/-per month from the date of institution of the suit till date of handing over of possession of shop to landlord. Petitioner/tenant challenged the judgment dated 20.7.2022 by way of revison under Section 25 of Provincial Small Cause Courts Act, 1887 which was registered as Small Cause Revision No.269 of 2022 before District Judge, Kanpur Nagar. The aforementioned revision was heard and dismissed vide judgment dated 21.9. 2022. Hence this petition under Article-227 of the Constitution of India for following relief:-
1. Set aside the order dated 21.9.2022 (Annexure 14 to the petition) passed by Judge, Small Causes District Judge, Kanpur Nagar in S.C.C. Revision No.2692022 (Subhash Chandra vs. Ravindra Kumar Rathor), under Section 25 of the Provincial, Small Causes Court Act and order dated 20.7.2022 and 19.7.2022 (Annexure 10 and 9 to the petition) passed by the Judge, Small Causes, Kanpur Nagar in S.C.C. Case No.157/2019 (Ravindra Kumar Rathor vs. Subhash Chandra).
2. Pass another order or direction as this Honble Court may deem fit and proper under the facts and circumstances of the case to which the petitioner be entitled under the law;
3. Award cost of the writ petition.
3. This Count entertained the matter on 17.10.2022 and granted conditional interim order in favour of petitioner which is quoted as under:-
The argument advanced by learned counsel for the petitioner is that judgment passed by Judge, Small Causes cannot be treated as a decree within the meaning of Section 2(2) of the Code of Civil Procedure, 1908 as no point was formulated so as to appreciate the evidence led by plaintiff and pleadings raised in the plaint. However, he would admit that shop in question is at a very prime location and he is tenant thereof.
Prima facie, the arguments advanced by learned counsel for the petitioner appears to have substance and matter requires consideration.
Issue notice to respondent, returnable within eight weeks. Steps for service be taken within two weeks.
List on the date indicated in the notice.
In the meanwhile, until further orders of this Court, the order passed by Judge, Small Causes dated 20.07.2022 and 19.07.2022 3 in SCC Suit No. 157 of 2019, shall remain stayed provided the petitioner deposits entire decretal amount within a period of six weeks from today and further continues to pay Rs. 10,000/- as rent and damages in respect of premises in question on or before 7th day of each month to begin from November, 2022.
It is clarified that in the event of default of directions issued hereinabove, the interim protection granted hereinabove shall cease to operate and the plaintiff respondent shall be at liberty to get the decree executed and this may also be ground for dismissal of this petition on the next date fixed.
4. In pursuance of the order dated 17.10.2022, parties have exchanged their pleading.
5. Counsel for the petitioner submitted that proceeding of SCC Suit was conducted in ex parte manner, as such, entire proceeding is illegal. He submitted that publication has taken place in the newspaper which has no circulation in the area. He submitted that during Covid-19 pandemic the proceeding was conducted against the petitioner / tenant in ex parte manner, as such, the impugned judgment cannot be sustained in the eye of law. He submitted that even ex parte judgment cannot be passed in arbitrary manner, decreeing the plaintiffs suit without framing issues/point of determination. He submitted that in notice under Section 106 of Transfer of Property Act, the ground of termination of tenancy is mentioned as bonafide need of the landlord but Judge, Small Causes has mentioned in his ex parte judgment dated 20.7.2022 that S.C.C. Suit has been filed for recovery of arrears of rent and tax which demonstrate that S.C.C. Suit has been decided in arbitrary manner by Judge, Small Causes. He placed reliance upon the judgment of the Apex Court reported in 2018 0 Supreme (SC) 811, M/s Alagu Pharmacy & Ors vs. N. Magudeswari in support of his argument.
6. On the other hand, learned Counsel for landlord/ respondent submitted that shop in question was let out to petitioner/tenant on 1.9.2017 for the period of 11 months which expired on 31.7.2018 and since then no agreement was executed between the petitioner and respondent. He submitted that notice dated 4.1.2019 was sent to petitioner tenant terminating his tenancy which was served upon him. He Submitted that S.C.C. Suit was accordingly filed by respondent/landlord which was decreed ex parte for eviction of the tenant as tenant/petitioner has failed to appear in the SCC Suit. He submitted that application under Order 9 Rule 7 of Civil Procedure Code filed by tenant / petitioner against the order to proceed ex parte in S.C.C. Suit was not maintainable as remedy, if any, to defendant/tenant/petitioner to apply under Order 9 Rule 13 of Civil Procedure Code. He submitted that in order to escape himself from depositing the statutory amount as provided under Section 17 of Provincial Small Cause Courts Act, the remedy under Order 9 Rule 13 of Civil procedure Code was not availed. He submitted that revision filed by tenant/petitioner has been rightly dismissed by revisional court, as such, no interference is required under Article 227 of the Constitution of India against the concurrent judgment passed by the Judge, Small Causes and revisional court.
7. I have considered the argument advanced by learned Counsel for the parties and perused the records.
8. There is no dispute about the fact that S.C.C. Suit filed by plaintiff/landlord/respondent for eviction of defendant/tenant/petitioner has been decreed for eviction of tenant as well as damages by Judge, Small Causes and revision under Section 25 of Provincial Small Cause Courts Act has also been dismissed by revisional court. There is also no dispute about the fact that this Court granted interim protection to tenant with condition that tenant shall deposit Rs.10000/- towards monthly rent of the shop in question.
9. In order to appreciate the controversy involved in the matter, perusal of relevant portion of judgment of Judge, Small Causes will be relevant which are as under:-
"वादी के विद्वान अधिवक्ता की बहस सुनी गयी तथा पत्रावली का अवलोकन किया गया,
पत्रावली के अवलोकन से विदित होता है कि वादी द्वारा प्रस्तुत वाद प्रतिवादी के विरुद्ध बकाया किराया व टैक्स की वसूली हेतु दाखिल किया है।वादी द्द्वारा प्रश्नगत दुकान का किराया 3150/- रूपया प्रतिमाह की दर सेहोना कहा गया है। प्रतिवादी की ओर से कोई प्रतिवादपत्र दाखिल करके किराये की दर को विवादित नहीं किया गया है। नोटिस कागज संख्या 8ग में भी किराया 3150/-रूपया प्रतिमाह अंकित है। इस नोटिस का जवाब 11ग प्रतिवादी की ओर से दिया गया । नोटिस के पैरा-2 में मकान नम्बर 148बी पनकी रोड कल्यानपुर कानपुर के भूतल पर स्थित दुकान नम्बर 1 का किराया 3150/-रूपया प्रतिमाह की दर से होना प्रतिवादी ने 11ग नोटिस में स्वीकार किया है। इससे साबित होता है कि, प्रश्नगत दुकान का किराया 2000/- रूपये से अधिक है अतः यू०पी० एक्ट 13 सन् 1972 के प्रावधान इस मामले में लागू नहीं होते है।
प्रतिदादी ने स्वयं को वादग्रस्त दुकान में किरायेदार होना जवाब नोटिस 11ग में स्वीकार किया है। नोटिस कागज सं० 8ग दिनांक 04.01.2019 से प्रतिवादी की किरायेदारी समाप्त की गयी है। नोटिस विधिक है और वैध नोटिस के द्वारा प्रतिवादी की किरायेदारी समाप्त की गयी है। जो साक्ष्य वादी की ओर से दाखिल किया गया है उसका खण्डन प्रतिवादी की ओर से नहीं किया गया है। वादी अपने वाद को साबित करने में सफल रहा है। तदानुसार वाद एक पक्षीय रूप से सव्यय आज्ञप्त किये जाने योग्य है।
आदेश
दावा वादी, विरूद्ध प्रतिवादी एक पक्षीय रूप से सव्यय आज्ञप्त किया जाता है। प्रतिवादी को आदेशित किया जाता है कि वह वादग्रस्त किरायेदारी वाला भाग, जिसका चौहद्दी व विवरण वाटपत्र के अन्त में दिया गया है, को खाली करके उसका भौतिक कब्जा निर्णय के एक माह के अन्दर वादी को सौंप दें। ऐसा न करने पर वादी न्यायालय की प्रक्रिया के अनुसार वादग्रस्त भाग पर कब्जा पाने का अधिकारी होगा।
प्रतिवादी को आदेशित किया जाता है कि वह वाद दायर होने की तिथि दिनांक 21.05.2019 से वास्तविक कब्जा प्रदान करने तक 3,150/- रूपया प्रतिमाह के हिसाब से हर्जा इस्तेमाली दौरान वाद व भविष्यवर्ती वादी को अदा करें। ऐसा करने में असफल रहने पर वादी विधिनुसार प्रक्रिया के द्वारा प्रतिवादी से धनराशि वसूल करने का अधिकारी होगा।
दिनांक-20.07.2022
( रघुवीर सिंह कठौर)
लघुवाद न्यायाधीश
कानपुर नगर।"
10. The perusal of the relevant portion of the judgment rendered in SCC Suit demonstrate that judgment passed in S.C.C. Suit was ex parte against defendant/ tenant / petitioner after sufficient service of notice upon the defendant / tenant recording finding of fact that notice dated 4.1.2019 has been served upon the tenant and notice is valid notice by which tenancy of the tenant has been terminated.
11. The remedy against the order to proceed ex parte in S.C.C. Suit was under Order 9 Rule 13 of the Civil Procedure Code complying the provisions of Section 17 of the Provincial Small Cause Courts Act but tenant/petitioner availed remedy under Order 9 Rule 7 of the Civil Procedure Code which has been rightly refused by the Judge, Small Causes.
12. Petitioner is tenant of respondent and sufficient time has elapsed, as such, remand of the matter to Judge, Small Causes to decide the S.C.C. Suit afresh will permit the litigation to continue for further period of 30 years, as such, matter should be decided on merit by this Court.
13. It is material to mention that the procedure prescribed under the Act/Code/Rule is to be followed in that particular manner otherwise entire proceeding will be vitiated, as such, initiation of proceeding under Order 9 Rule 7 of the Civil Procedure Code in place of Order 9 Rule 13 of Civil Procedure Code in order to avoid liability of Section 17 of the Provincial Small Cause Courts Act cannot be allowed. There is no illegality in the exercise of jurisdiction by Judge, Small Causes as well as revisional court.
14. Apex Court in the case reported in (2005) 1 SCC 787 Bhanu Kumar Jain Versus Archana Kumar And Another has held that application under Order 9 Rule 7 of the Civil Procedure Code will be maintainable if the hearing has not been concluded in the suit. Paragraph No.16 of the judgment rendered in Bhanu Kumar Jain (Supra) will be relevant for perusal which are as under :-
16. Order 9 Rule 7 of the Code postulates an application for allowing a defendant to be heard in answer to the suit when an order posting a suit for ex parte hearing was passed, only in the event, the suit had not been heard; as in a case where hearing of the suit was complete and the court had adjourned a suit for pronouncing the judgment, an application under Order 9 Rule 7 would not be maintainable. (See Arjun Singh v. Mohindra Kumar.) The purpose and object of Order 9 Rule 7 of the Code has been explained by this Court in Vijay Kumar Madan v. R.N. Gupta Technical Education Society and Ramesh Chand Ardowatiya v. Anil Panjwani.
15. Considering the entire facts and circumstances of the case, no interference is required against the impugned judgment dated 21.9.2022, passed by the District Judge in S.C.C. Revision No.269 of 2022 and order dated 20.7.2022 as well as 19.7.2022 passed by Judge, Small Causes in S.C.C. Suit No.157 of 2019.
16. The instant petition is dismissed.
Order Date :- 25.8.2025
C.Prakash
(Chandra Kumar Rai, J.)
