Case Note & Summary
The petitioners, Hargovindas Shivlal & Co. and others, were lessees of an open plot of land in Chembur, Mumbai. They had entered into a leave and licence agreement with the second respondent, Lok Seva Education Society, on 1 June 1969 for 2080 sq. yards, and later a lease agreement on 1 November 1975 for 7762.21 sq. yards for use as a playground and school building. Due to disputes among trustees and withholding of government grants, the society failed to pay rent. The petitioners filed a suit for eviction on the ground of non-payment of rent, seeking possession of the plot along with buildings. An ex-parte decree was passed on 2 December 1986 by the Court of Small Causes. The society filed Miscellaneous Notice 232 of 1987 to set aside the ex-parte decree. On 11 January 1988, the Small Causes Court passed a conditional order that the ex-parte decree would be set aside upon the defendants depositing Rs. 1,56,000/- as arrears of rent up to December 1987. The petitioners challenged this conditional order by way of a writ petition. The High Court held that the condition imposed was a valid exercise of discretion by the trial court and that no interference was called for in writ jurisdiction. The petition was dismissed.
Headnote
A) Civil Procedure - Ex-parte Decree - Setting Aside - Conditional Order - Order IX Rule 13, Code of Civil Procedure, 1908 - The Small Causes Court passed a conditional order setting aside an ex-parte decree upon deposit of arrears of rent. The High Court held that the condition was a valid exercise of discretion and no interference was warranted in writ jurisdiction. (Paras 1-3)
Issue of Consideration
Whether the Small Causes Court was justified in imposing a condition of depositing arrears of rent while setting aside an ex-parte decree in an eviction suit.
Final Decision
The writ petition is dismissed. No order as to costs.
Law Points
- Conditional order setting aside ex-parte decree
- Deposit of arrears as condition
- Discretion under Order IX Rule 13 CPC
- No interference in writ jurisdiction
Case Details
2006 LawText (BOM) (06) 11
Writ Petition No.3464 of 1988
Mr. Y.S. Jahagirdar, Sr. Advocate with Ms. Anita Castelino and Mr. Narayan Waghela for the Petitioners; Mr. Y.K. Tiwari for Respondent Nos.2, 4, 5 and 16
Hargovindas Shivlal & Co. & Ors.
Sri M.J. Chaudhari, Judge, Small Causes Court at Bombay & Ors.
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Nature of Litigation
Writ petition challenging a conditional order passed by the Small Causes Court setting aside an ex-parte decree upon deposit of arrears of rent.
Remedy Sought
The petitioners sought to quash the conditional order dated 11 January 1988 passed by the Small Causes Court.
Filing Reason
The petitioners were aggrieved by the condition imposed by the Small Causes Court for setting aside the ex-parte decree.
Previous Decisions
An ex-parte decree was passed on 2 December 1986 in favour of the petitioners. The Small Causes Court on 11 January 1988 passed a conditional order setting aside the decree upon deposit of Rs. 1,56,000/-.
Issues
Whether the Small Causes Court was justified in imposing a condition of depositing arrears of rent while setting aside an ex-parte decree.
Submissions/Arguments
The petitioners argued that the condition imposed was onerous and unjustified.
The respondents supported the conditional order as a valid exercise of discretion.
Ratio Decidendi
The condition imposed by the Small Causes Court for setting aside the ex-parte decree was a valid exercise of discretion under Order IX Rule 13 of the Code of Civil Procedure, 1908, and no interference is warranted in writ jurisdiction.
Judgment Excerpts
The Petitioners are Lessees of an open plot of land admeasuring 10700 sq.yards...
An ex-parte decree came to be passed on 2nd December 1986...
On 11th January 1988, the Court of Small Causes passed a conditional order...
Procedural History
The petitioners filed a suit for eviction in the Small Causes Court. An ex-parte decree was passed on 2 December 1986. The society filed Miscellaneous Notice 232 of 1987 to set aside the decree. On 11 January 1988, the Small Causes Court passed a conditional order setting aside the decree upon deposit of arrears. The petitioners challenged this order by way of a writ petition in the High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Order IX Rule 13
