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Kabir Alam v. Badaruddin & Others - WRIT - A No. 2097 of 2001  RD-AH 1755 (20 December 2004)
Court No. 26
Civil Misc. Writ Petition No. 2097 of 2001
Kabir Alam Versus Badaruddin and others
Hon'ble Vikram Nath J.
This writ petition has been filed for quashing the order dated 20.10.2000(Annexure-8) whereby Judge Small Cause Court, Varanasi has rejected the application (Paper No. 9-C) filed by the tenant petitioner for accepting security before entertaining the application under Order 9 Rule 13 C.P.C. for setting aside the decree passed as provided under the proviso to Section 17 of the Provincial Small Cause Court Act 1887 (hereinafter referred to as the 1887 Act).
The dispute relates to premises No.C-17-28 Pitarkunda, Varanasi of which the petitioner is tenant and the respondents are the owners landlord. The respondent filed a suit for recovery of arrears of rent and ejectment of the petitioner, being JSCC Suit No.36 of 1998 before the Judge Small Causes Court, Varanasi. The said suit was decreed exparte vide judgment dated 30.03.1999. The petitioner on coming to know about the same on 27.07.1999 when local police came to the house for inspection, immediately thereafter filed two applications on 29.07.1999. Application (Paper No. 4-C) was filed under Order 9 Rule 13 CPC for setting aside the exparte decree and the application (paper No.9-C) was filed seeking permission of the Court to furnish personal security in lieu of decretal amount in compliance of the proviso to Section 17 of the 1887 Act. The Judge Small Causes Court invited objections and thereafter fail to pass any order on the application 9-C, even though the said application was to be decided first. However, on 20.10.2000 when the petitioner pressed his application for furnishing security, the Judge Small Causes Court Varanasi has rejected the same on the ground that it has been not pressed by the petitioner. The order passed by the Judge Small Causes Court is totally vague and cannot be sustained. It has been wrongly and observed that the petitioner did not press the application 9-C. The further observations of the Court below that the petitioner did not inform the court about the said application also appears to be contrary to the record in as much as the application is not disputed to be brought on record or that the same has been filed subsequently. If the Court fails to pass orders no blame can be put on the party. Aggrieved by the said order, the petitioner has filed the said petition.
I have heard Sri Brijesh Chandra Naik, learned counsel for the petitioner. Despite the fact the cause list has been revised, no one appears on behalf of the respondent. The order of this court dated 25.2.2002 has also been communicated to the respondent's counsel that the matter is covered by Judgment of the Supreme Court in case of Kedar Nath and Mohan Lal reported in 2002(46), A.L.R. page 377. In the said case it was held by the Supreme Court that the application filed for accepting security should be decided first. The present petition is liable to be allowed.
The apparent reason for the absence of the respondent is that the petitioner has already been evicted from the premises in dispute pursuant to the exparte decree. However, in view of the reasons stated above, the impugned order cannot be sustained. This writ petition is liable to be allowed. The order dated 20.10.2000(Annexure-8 to the petition) passed by Judge Small Causes Court Varanasi is set aside and the court below is directed to pass fresh order on the application (Paper No.9-C) in accordance with law and proceed with the case.
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