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Mohammad Mazhar Hasan Alias Naushe Mian v. Smt. Kaneez Fatima - WRIT - A No. 3146 of 2006  RD-AH 2715 (6 February 2006)
Court No. 4
Civil Misc. Writ Petition No. 3146 Of 2006.
Mohammed Mazhar ............Plaintiff-Petitioner.
Smt. Kaneez Fatima ....Defendant-Respondent.
Hon'ble Anjani Kumar, J.
The plaintiff-petitioner by means of this writ petition under Article 226 of the Constitution of India challenges the order passed by the revisional court dated 14.10.2005 whereby the revisional court allowed the revision filed by the defendant-tenant and set aside the order passed by the trial court whereby the trial court rejected the application filed by the defendant under Order IX rule 13 of the Code of Civil Procedure (in short the 'Code') for setting aside the ex parte decree, was dismissed.
That it appears that the suit filed by the plaintiff being JSCC Suit No. 71 of 2001 for the eviction of the respondent was filed on the ground that the tenant is in arrears of rent and has not paid the same after due service of the notice under Section 106 of the transfer of property Act and even after service of the notice neither vacated the accommodation nor paid the arrears of rent. Thus the suit was decreed ex parte on 18.5.2002. Aggrieved by the decree dated 18.5.2002 passed by the trial court the defendant filed an application under Order IX rule 13 of the Code on 19.9.2002 for setting aside the ex-parte decree. The aforesaid application has been dismissed by the trial court vide order dated 16.4.2004. Thereafter the defendant preferred a revision being JSCC Revision No. 40 of 2004 before the revisional court. The revisional court by the impugned order has allowed the revision and set aside the order passed by the trial court whereby the trial court decreed the suit ex parte. Thus, this writ petition.
Learned counsel for the petitioner has submitted that from the findings recorded by the trial court it is apparent that the notice of the suit in fact was served on the defendant and defendant had full knowledge of the litigation and defendant deliberately did not appear therefore, the order decreeing the suit is perfectly justified and trial court has not committed any error in decreeing the suit and the view to the contrary
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taken by the revisional court is not correct. Learned counsel for the petitioner has submitted that the revisional Court in exercise of revisional jurisdiction under Section 25 of the Provincial Small Cause Courts Act, 1887 has committed an error in setting aside the finding regarding service of notice of the trial court. Thus, the order deserves to be set aside. From the perusal of the records it is apparent that the finding recorded by the trial court is subject to any order that might be passed by the revisional court in exercise of revisional jurisdiction. The revisional court while arriving at the conclusion that the notice was served on the defendant suffers from error which requires to be corrected in revisional jurisdiction this notification the matter revisional court found that in view of the law referred to by the revisional court the apex court has laid down that while dealing with the application for setting aside the order the courts' endeavor should be to get the matter decided on merit instead of technicalities of. In view of the law laid down by the Apex court reported in 1978 ARC page 496; Ramji Dass and another Versus Mohan Ji. The revisional court further held that the argument that has found favour with the trial court that the defendant has not complied with the provisions of proviso to Section 17 of the Provincial Small Cause Courts Act while entertaining the application for setting aside the ex parte decree deserves to be set aside as from the record it is apparent that the defendant has complied with the provisions of proviso to Section 17 of the Act, therefore, the application for setting aside the ex parte decree should not have been rejected on this ground. The trial court has committed an error which deserves to be corrected in exercise of jurisdiction under Section 25 of the Provincial Small Cause Courts Act, 1887.
Learned counsel for the revisionist has not been able to demonstrate that the findings in any way suffer from the error apparent on the face of record so as to warrant interference by this Court in exercise of jurisdiction under Article 226 of the Constitution of India. This writ petition deserves to be dismissed. The order of the revisional court is upheld.
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