IMPORTANT POINT
While making order for setting aside decree passed ex-parte, Court may put defendant to terms as to costs.

JUDGMENT :

DINESH MAHESHWARI, J.

Leave granted.

2. This appeal, by the legal representatives of deceased defendant in the civil suit bearing No. 1 of 2015 for recovery of arrears of rent and for ejectment, is directed against the order dated 21.09.2022 passed by the High Court of Judicature at Allahabad, Lucknow Bench in the petition bearing No. 3536 of 2022, whereby the High Court has declined to interfere with the order dated 01.09.2022 passed by the Court of Additional District and Sessions Judge (POCSO Act)-II, Raebareli, rejecting an application under Order IX Rule 13 of Code of Civil Procedure, 1908 (‘CPC’) for setting aside ex parte judgment and decree dated 09.03.2016/16.03.2016.

3. Shorn of unnecessary details and briefly put, the relevant background aspects of the matter are that the respondent herein, asserting his capacity as owner and proprietary right holder, filed the suit aforesaid against the late father of present appellants in the Small Causes Court, stating that the defendant was a tenant in the suit shop at a monthly rent of Rs. 2,000/- per month and had failed to make payment of rent from the month of February, 2015 to the month of May, 2015, amounting to Rs. 8,000/- and 15% municipal tax despite notice.

4. It appears that in the said civil suit, the Trial Court held the service of summons on the defendant sufficient and proceeded ex parte for want of appearance on behalf of the defendant; and after taking evidence, on 09.03.2016, decreed the suit with costs, for recovery of arrears of rent in the sum of Rs. 8,000/- and for eviction of the defendant from the suit shop while also holding the plaintiff entitled to receive damages from the defendant, for use and occupation of the suit shop, at the rate of Rs. 2,000/- per month until delivery of actual vacant possession. The operative part of the judgment dated 09.03.2016 reads as under: -

“The suit of the plaintiff is decreed ex-parte with cost against the defendant for recovery of the rent Rs. 8,000/- and for eviction of the shop in question and the defendant is ordered that he to hand over the vacant possession of the plaintiff’s shop which is at present situated in Municipality House No. 62/3, Ward No. 24, Malikmau Road, near Beliganj Phatak within the jurisdiction of the Municipality, Pargana, Tehsil and District Raebareli, the four boundaries of which are – North by: Malikmau Road, South by: rest building of the plaintiff, East by: House of the plaintiff, West by: House of Hariom are situated, within two months. The plaintiff would be entitled to Receive Rs. 2,000/- per month as the compensation for use of the aforesaid shop during the suit and till handing over the actual vacant possession and occupation of the said shop after paying the Court Fee in the Execution Department.”

5. Later on, the defendant, predecessor of the appellants, moved an application under Order IX Rule 13 CPC alongwith an application under Section 5 of the Limitation Act, 1963 on 20.08.2016. He also moved an application under Section 17 of the Provincial Small Cause Courts Act, 1887 (‘the Act of 1887’), alongwith a tender seeking permission to deposit the decretal amount to the tune of Rs. 11,212/-, inclusive of the amount of costs. An objection was taken by the plaintiff-respondent against the application so moved by the defendant with the submissions, inter alia, that under the decree in question, he was entitled not only to the said arrears of rent and costs but also to damages at the rate of 2,000/- per month until possession continued with the defendant; and necessary deposit towards damages having not been made, the application for setting aside ex parte decree was not maintainable. It is noticed that during pendency of the application aforesaid, the defendant, father of the appellants, expired on 26.09.2017; and an application was moved by the present appellants on 12.03.2018, for their substitution as applicants in place of the deceased applicant.

6. The Trial Court took note