JUDGMENT
S.M. Daud, J.
1 An interesting question of a some what complex nature arises in this revision.
2. Nandkumar Ramchandra Jadhav, the petitioner in this revision and hereinafter to be referred to as the ‘defendant’ had instituted suit bearing No. 1879 of 1978 in the Court of Small Causes at Pune against Gangaram Jagannath Katavate, hereinafter to be referred to as the ‘plaintiff’. The suit was for possession and arrears of rent and compensation etc. Plaintiff was served with the summons of the said suit, but remained absent for which reason an ex-parte decree came to be passed against him. To get over this decree, the plaintiff filed an application bearing Miscellaneous Application No. 772 of 1982 under Order IX Rule 13 of the Code of Civil Procedure, 1908. The said application averred that plaintiff had been prevented from coming to Court to defend himself by a fraud practised upon him by the defendant’s brother acting at the defendant’s instance. This application was rejected by the Small Causes Court and an appeal preferred against the rejection being Miscellaneous Civil Appeal No. 293 of 1984 was dismissed by an Additional District Judge of Pune by his judgment dated 16th October, 1985. There abouts or thereafter the plaintiff filed Civil Suit No. 2297of 1985. This was a suit to set aside the decree obtained by the defendant from the Small Causes Court on the ground that it was vitiated by fraud. The fraud elleged was that plaintiff had been prevented from defending the suit brought by the defendant by reason of a fraud practised at the latter’s instance by the latter’s brother. In the suit an application seeking a temporary injunction to restrain defendant from executing the decree passed in the earlier suit was moved. The application recited that the decree obtained by the defendant was vitiated by the fraud detailed above and therefore, could not be executed—at least, until the disposal of the suit. The Joint Civil Judge, Junior Division, before whom the application for Interim injunction came up, dismissed the said application. Against that dismissal, the plaintiff went in appeal to the District Court and an Additional District Judge allowed the said appeal on 20th October, 1986 holding that the suit raised matters of substance for which reason the plaintiff was entitled to an interim injunction. The legality and propriety of the said order is in Issue in the instant revision.
3. The learned Addl. District Judge who allowed the appeal and granted the interim injunction was of the view that the dismissal of the application under Order IX, Rule 13 C.P.C.was of no consequence. This was because the suit instituted by the plaintiff was to set aside a decree vitiated by fraud. This question was outside the purview of the Small Causes Court by virtue of section 15 of the said Act read together with Entry 23 of the Second Schedule of the Provincial Small Cause Courts Act, 1887. Mr. Shinde argues and rightly so, that the learned Judge was in error. The entry relied upon by the learned Addl. District Judge is worded thus:—
“A suit to alter or set aside a decision, decree or order of a Court, or of a person acting in a judicial capacity”.
But the application moved under Order IX Rule 13 C.P.C. was within the jurisdiction of the Small Cause Court. That Court alone could entertain such an application, viz. an application to set aside an ex parte decree. The dismissal of the application barred the suit of the plaintiff vide Explanation VIII to section 11 of the C.P.C. This explanation reads as follows:—
“An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such Issue has been subsequently raised”.
The above explanation applies on all fours to the facts of this case. The issue of viz. whether the plaintiff had been prevented from defending the suit for ejectment and rental arrears etc. brought against him by the defendant because of fraud practiced at the instance of the defendant was considered and decided against the plaintiff in the proceeding arising from the application moved under Order IX, Rule 13 C.P.C.. The Small Causes Court may not be competent to set aside or alter a decree vitiated by fraud. Nonetheless it was competent to rule upon the application under Order IX, Rule 13 C.P.C., moved by the plaintiff. The finding recorded on the said issue would thus operate as res-judicata although the Small Cause Court may not be competent to hear and decide the suit filed by the plaintiff to set aside the decree allegedly vitiated by fraud. Thus viewed the learned Addl. District Judge was in error and hence the order:-
ORDER
The revision succeeds. The impugned order is set aside and the application for temporary injunction moved by the plaintiff is dismissed. Rule in these terms made absolute, with the parties being left to bear their own costs throughout.
Mr. Shinde upon a request made by Mr. Ghaisas agrees and I order that the plalintiff/Respondent be given two months time to deliver vacant possession of the suit premises. This will be upon his furnishing a written undertaking containing the usual terms in the trial Court within 15 days from today.