JUDGMENT - V.C. DAGA, J.:---This petition, filed under Article 227 of the Constitution of India, takes an exception to the order dated 15-12-1989 passed by the 5th Additional District Judge, Pune in Misc. Civil Appeal No. 121/1987, confirming the order dated 7-3-1987 passed by the 2nd Additional Small Causes Court, Pune, in Misc. Application No. 565/1983, whereby the application filed under Order 9, Rule 13 of Code of Civil Procedure, 1908 ("C.P.C." for short), was dismissed.

FACTS

2. The facts giving rise to the present petition in nutshell are as under:

The petitioner herein was a tenant in the suit premises owned by the respondent M/s. Hotel Rozulia Private Limited.

3. The respondent in the capacity of landlord had filed Civil Suit No. 226/1978 against the petitioner for possession of the suit premises. One of the dates on which suit was fixed for hearing was 6-7-1983. The petitioner could not remain present on 6-7-1983. With the result, the Court trying the suit proceeded ex parte and decreed the suit vide its judgment and decree dated 6-7-1983.

4. The petitioner thereafter filed application under Order 9, Rule 13 of the C.P.C. being Misc. Civil Application No. 565/1983 in the Small Causes Court at Pune for setting aside the judgment and decree passed ex parte against him. The said application was made on 1-8-1983, wherein it was pleaded that due to the sickness of petitioner's wife, who was suffering from heart disease, the petitioner could not remain present in the Court on the date fixed for hearing. It was also pleaded in the said application that the Advocate for the petitioner could not be informed well within time because of the said sickness. The petitioner had also stated and submitted in the said application that the suit filed by the respondent was not for the arrears of rent but for possession, for having changed the user of the suit premises. Hence the major relief sought for was that of the possession of the suit premises.

5. On being noticed, the respondent/landlord (original plaintiff/decree holder) appeared and opposed the said application and raised a preliminary objection about the maintainability of the application moved under Order 9, Rule 13 of the C.P.C. The preliminary objection was that under section 17 of the Provincial Small Cause Courts Act, (Act for short) it was mandatory on the part of the applicant/original defendant, against whom ex parte decree was passed, either to deposit in the Court the amount due from him under the decree or in pursuance of the judgment or furnish such security, for the performance of the decree or compliance with the judgment as the Court may direct on the prior application made in that behalf. In the submission of the respondent/opponent, the applicant/petitioner had neither deposited the amount due under the decree nor applied for order of the Court seeking permission to give security for the said amount. It was thus contended that for want of compliance of proviso to section 17 of the Act, the application was not maintainable.

6. The learned Judge of the Small Causes Court, trying the Misc. Application referred to hereinabove, heard both the parties at length and held that proviso to section 17 of the Act was very much applicable to the proceedings and as such it was obligatory on the part of the petitioner (original applicant) to comply with the proviso of section 17 of the Act. In this view of the matter, it was held that the application was not maintainable in absence of compliance of the provision of section 17 of the said Act. In the result, the application came to be dismissed vide order dated 7-3-1987. The preliminary objection raised by the respondent (non-applicant) was upheld.

7. Being aggrieved by the aforesaid order of the 2nd Small Causes Judge, Pune, the appeal was preferred under Order 43, Rule 1(d) of the C.P.C. The said appeal came to be registered as Misc. Appeal No. 121/1987. The said appeal was heard by the 5th Additional District Judge, Pune, who wa

Click Here to Read the rest of this document