IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Revision No. 25 of 2010 Shri Lalita Prasad Lakhera .……Revisionist Versus Shri Satya Prasad Vyas …….Respondent Hon’ble Tarun Agarwala, J. This is a revision under Section 25 of the Provincial Small Cause Courts Act, filed at the hands of the tenant, against the order of eviction dated 8th January, 2010 as well as against the order dated 3rd August, 2010, by which his application under Order IX Rule 13 of the Code of Civil Procedure has been rejected. The facts leading to the filing of the present revision is that the landlord instituted a suit for the eviction of the tenant along with arrears of rent and damages on 7.12.2006. The suit was instituted at Dehradun. Notices were issued which remained unserved and consequently a direction was issued to serve the tenant by publication. The publication was made and the court held that sufficient service has been effected on the tenant by publication in a newspaper and, by an order dated 25th March, 2008, directed to proceed ex parte against the tenant. It transpires that the case was subsequently transferred by an order of the District Judge dated 3rd September, 2009, to the court of Additional District Judge, Rishikesh and thereafter the suit proceeded and eventually it was decreed ex parte by an order dated 8th January, 2010. 2 The decree was put in execution and notices were issued to the tenant by the Executing Court. It is alleged that summons in these execution proceedings was served upon the tenant on 3rd March, 2010, and it was then the tenant came to know about these eviction proceedings and the ex parte decree. Accordingly, an application under Order IX Rule 13 of the Code of Civil Procedure was presented along with an Application under Section 5 of the Limitation Act on 8th March, 2010. The record indicates that notices were issued to the landlord by the court on 17th March, 2010, who appeared and filed his objection on 30th March, 2010. Subsequently, the landlord filed an application on 22nd April, 2010 alleging non-compliance of the provision of Section 17 of the Provincial Small Cause Court Act. On the other hand, the tenant realising non-compliance of the provision of Section 17 of the said Act deposited a sum of Rs.55,000/- on 5th April, 2010, and further deposited another sum of Rs.1,05,000/- on 21st July, 2010 and armed with such deposits, the tenant filed an application on 22nd July, 2010 under Section 5 of the Limitation Act praying that the delay in the deposits made by the tenant under Section 17 of the Act, be condoned. The trial court, after hearing the parties, dismissed the application under Order IX Rule 13 of the Code of Civil Procedure and under Section 5 of the Limitation Act by an order dated 3rd August, 2010. The trial court held that the tenant had knowledge of the proceedings and deliberately did not appear and consequently no sufficient cause 3 was shown by the tenant in condoning the delay for non-appearance. The trial court further found that the subsequent deposit made by the tenant under Section 17 of the Act after presentation of the application under Order IX Rule 13 of the Code of Civil Procedure was not in consonance with the proviso to Section 17 of the Act and consequently the said delay could not be condoned. The trial court accordingly rejected the application under Order IX Rule 13 of the Code of Civil Procedure as well as the application under Section 5 of the Limitation Act. The tenant being aggrieved by the said order has now preferred the present revision. This matter came up yesterday and the learned counsel for the parties agreed that since no disputed questions of fact was involved, the same may be decided finally, and, accordingly the matter was posted today for final disposal. Heard Sri Neeraj Garg, the learned counsel for the revisionist/tenant and Sri J.P. Joshi, the learned counsel for the opposite party/landlord. The learned counsel for the tenant has submitted that the entire proceedings were ex parte and that, the tenant had no knowledge of the proceedings pending before the trial court at Dehradun and that, had no knowledge of the publication made in the newspaper. The learned counsel tried to impress upon the Court that 4 pursuant to the order of the District Judge dated 3rd September, 2009, the case was transferred from the court of Dehradun to the court of Rishikesh and pursuant thereto no notice was issued to the tenant which was a necessary requirement under Rule 89- A of the General Rules (Civil) and non-compliance of this mandatory Rule rendered the ex parte decree void. In support of his submission, the learned counsel for the tenant placed reliance upon a decision in Smt. Shanti Devi vs. Rahmatuallah alias Iqbal Ahsani and others, 1981 A.W.C. 547, wherein it was held that the transferee court was required to justify itself that the parties or their counsel had been informed about the transfer of the case. The learned counsel also placed reliance upon a decision in Balbir Singh Chauhan vs. Vijai Kumar Agarwal, 1987 (1) ARC 336 on the proposition that if the tenant was not informed about the transfer of the case, the same was a sufficient ground for the recall of the ex parte decree under Section 151 of the Code of Civil Procedure and that, the tenant was not required to comply with the provision of Section 17 of the Provincial Small Cause Courts Act. The learned counsel for the tenant further submitted that even though the deposit contemplated under Section 17 of the Provincial Small Cause Courts Act was not made by the tenant on the date of presentation of the application under Order IX Rule 13 of the Code of Civil Procedure, the deposit made on a subsequent date was liable to be condoned and would have been treated to have been 5 filed at the time of presentation of the application under Order IX Rule 13 of the Code of Civil Procedure since sufficient cause had been shown by the applicant and the delay had been explained in his application under Section 5 of the Limitation Act. The learned counsel submitted that the condition contemplated under Section 17 of the said Act was fulfilled even after the expiry of the period of limitation and since sufficient cause had been shown, the delay was liable to be condoned and the application would be deemed to have been presented on that date when the application under Order IX Rule 13 of the Code of Civil Procedure was filed. In support of his submission, the learned counsel placed reliance upon a decision in Smt. Ram Piyari vs. Budh Sen and others, AIR 1977 Allahabad 390 and Khalil vs. IIIrd Additional District Judge, Hardoi and others, 1987 (1) ARC 37. The learned counsel also placed reliance upon a decision of Division Bench of the Allahabad High Court in Hukum Khan vs. Ist Addl. District Judge, Nainital and others, 1983 ARC 438. On the other hand, Sri J.P. Joshi, the learned counsel for the respondent submitted that the deposit under Section 17 of the Provincial Small Cause Courts Act was required to be made at the time of the presentation of the application under Order IX Rule 13 of the Code of Civil Procedure, which is a mandatory requirement as held by the Supreme Court in Kedarnath vs. Mohan Lal Kesarwani and others, 2002 (1) ARC186, wherein the Supreme Court held that the language of the 6 proviso was mandatory and that, an application seeking to set aside an ex parte decree passed by the Court of Small Causes, had to be accompanied by a deposit in the Court of the amount due from the applicant under the decree. The learned counsel submitted that admittedly the amount was not deposited on the date of the presentation of the application under Order IX Rule 13 of the Code of Civil Procedure and the subsequent deposit cannot comply with the mandatory requirement contemplated under Section 17 of the Provincial Small Cause Courts Act. The learned counsel further submitted that the application under Order IX Rule 13 of the Code of Civil Procedure filed by the tenant was patently misconceived and that, the tenant had knowledge of the proceedings which was made known to him in proceedings filed by the tenant under Section 30 of the U.P. Act No. 13 of 1972 and inspite of knowledge of the eviction proceedings initiated by the landlord the tenant did not appear before the trial court for which he alone is to be blamed and consequently, irrespective of the fact as to whether the deposit was made in consonance with the provision of Section 17 of the Provincial Small Cause Courts Act, the application under Order IX Rule 13 of the Code of Civil Procedure could not be allowed as the tenant had knowledge of the proceedings. Having heard the learned counsel for the parties at some length and having perused the order of the court below, an irresistible conclusion is drawn that the tenant had knowledge of the 7 proceedings of the trial court. The court below has given a categorical finding that in proceedings initiated by the tenant under Section 30 of the U.P. Act No. 13 of 1972, the landlord had filed an objection and indicated therein that he had filed a suit for eviction against the tenant before the Judge, Small Causes Court at Dehradun, and that, 16.11.2007 was fixed as the next date. This fact has not been controverted by the tenant and a lame excuse has been made that the tenant’s son was doing pairavi in the miscellaneous case under Section 30 of the U.P. Act No. 13 of 1972 and that, his son did not inform the tenant. The Court further finds that this finding given by the court below, while rejecting the application under Order IX Rule 13 of the Code of Civil Procedure, has not been specifically challenged in the present revision. The only ground of challenge raised by the learned counsel for the applicant is that after the case was transferred from Dehradun to Rishikesh, it was imperative for the transferee court to issue notice again to the tenant as required under Rule 89-A of the General Rules (Civil). The submission of the learned counsel for the tenant was attractive in the first blush, but the Court finds that such arguments cannot be taken into consideration at this stage. There is nothing to indicate in the application under Order IX Rule 13 of the Code of Civil Procedure to the effect that such a specific ground was raised before the court below nor is there any assertion before this Court that such ground was argued before the trial court which has 8 not been considered. Consequently, at this stage, the Court is not inclined to consider this submission since the same was not raised before the trial court while addressing the application under Order IX Rule 13 of the Code of Civil Procedure. Further, the Court finds that the tenant had knowledge of the proceedings pending before the Court of Small Causes at Dehradun and, was intimated that the next date was 16.11.2007. The tenant failed to appear before the said court and on subsequent dates. The burden lay upon him and could not transfer such burden upon the court and cannot take advantage that the notice was not served upon the transfer of the case. Such technicality cannot be raised nor can such advantage be given to the tenant which the Court can see that he was sitting at the fence and watching the proceedings and deliberately did not appear before the court. The fault clearly lay upon the tenant in not contesting the proceedings and consequently having knowledge of the proceedings, the Court is of the opinion that such proceedings cannot be prolonged any further on such technicality. The tenant had knowledge of the proceedings and deliberately chose not to appear. Consequently, without going into the fact as to whether the deposit made by the applicant was in consonance with the provision of Section 17 of the Provincial Small Cause Courts Act, the Court finds that the application under Order IX Rule 13 of the Code of Civil Procedure was not bona fide. The applicant/tenant had knowledge of the proceedings 9 and consequently the court below rightly rejected the application of the tenant under Order IX Rule 13 of the Code of Civil Procedure. This Court does not find any error in the impugned orders. The revision fails and is dismissed summarily. (Tarun Agarwala, J.) 28.08.2010 Salim/