Ajay Kaushik vs 4th Additional District Judge and Another

B.S. Verma, J.—This revision u/s 25 of the Provincial Small Cause Courts Act, 1887 (for short the Act), is directed against the ex parte

judgment and decree dated 31-5-2012 passed by the Additional District Judge/ 4th F.T.C/Judge, S.C.C., Dehradun (for short the J.S.C.C.) in

S.C.C. Suit No. 67 of 2011, Keshar Singh v. Ajay Kaushik, whereby the suit of the plaintiff-respondent No. 2 has been decreed ex parte and the

defendant-revisionist has been directed to vacate the premises in suit and handover its vacant possession within a period of 30 days to the plaintiff-

respondent No. 2 and to pay the arrears of rent and damages @ Rs. 6000/- per month as mentioned in the impugned judgment and decree. The

revisionist has further assailed the order dated 21-9-2012 passed by the learned J.S.C.C. whereby the application for setting aside ex parte

decree has been rejected as not maintainable for want of compliance of mandatory provisions as contained in Proviso appended to Section 17(1)

of the Act. Brief facts giving rise to the present revision are that the respondent No. 2 filed an S.C.C. suit for recovery of arrears of rent and for

eviction of the revisionist-defendant before the J.S.C.C. alleging therein that the defendant was given on rent the premises in suit for residential

purposes on a monthly rent of Rs. 4,000/- in addition to electric and water taxes and a rent note was executed between the parties on 13-7-2011

thereby the tenancy of the defendant was to run from 20-6-2011 for a period of 11 months. The defendant violated the terms and conditions of the

rent note and has defaulted in payment of rent since 20-9-2011; that the rent had not been paid despite demand made by the plaintiff; that a

registered notice was sent to the defendant thereby terminating the tenancy of the defendant as well as demanding arrears of rent, which was

refused to accept by the defendant; that there has been arrears of rent to the tune of Rs. 20,233/- and Rs. 2000/- towards charges of notices,

hence the suit has been filed claiming arrears of rent and damages for illegal use and occupation @ Rs. 500/- per day and for eviction.

Summons was issued to the defendant-revisionist which was not service, therefore, the service of summons was effected by publication, but the

defendant did not turn up to put in appearance and to contest the suit, hence the suit was ordered to proceed ex parte against the defendant-

revisionist.

In support of his case, the plaintiff filed his own affidavit and adduced documentary evidence. The suit was heard ex parte by the learned

J.S.C.C. and has been ultimately decreed by judgment and decree dated 31-5-2012.

It is obvious from a perusal of the record that after the ex parte judgment and decree was passed, the defendant-revisionist moved an

application for setting aside the ex parte decree, which was registered as Misc. Case No. 4 of 2012. The application was moved beyond the

period of limitation, therefore, an application was also filed for condonation of delay. On behalf of the plaintiff-opposite party an objection was

raised that the defendant-revisionist has not complied with the mandatory condition as contained in Proviso appended to sub-section (1) of Section

17 of the Act and contended that the defendant failed to deposit the decretal amount in the court.

In view of the law laid down by the Apex Court in the case of Kedarnath Vs. Mohan Lal Kesarwari and Others, and also considering the

Allahabad High Court judgment rendered in Civil Revision No. 15 of 2010, Dhirendra Kumar Agarwal v. Smt. Jannatun Nisha, decided on 16-2-

2012, learned J.S.C.C. has held that the mandatory provision as contained in Proviso appended to sub-section (1) of Section 17 of the Act has

not been complied with inasmuch as neither the decretal amount has been deposited nor any security has been tendered for that purpose,

therefore, the application for setting aside the ex parte decree was rejected as non-maintainable by order dated 21-9-2012, which gave rise to the

present revision.

I have heard the submissions of the learned counsel for the revisionist.

I have considered the provisions of Section 17 of the Act and the proviso appended to, sub-section (1) of Section 17 thereof. In the case at

hand, admittedly, the defendant-revisionist had neither deposited the decretal amount nor made any application for leave of the J.S.C.C. to furnish

security in lieu thereof. The Apex Court in the case of Kedarnath Vs. Mohan Lal Kesarwari and Others, has held that the nature of the proviso

appended to Section 17(1) of the said Act is mandatory and not directory. In this view of the matter, the learned J.S.C.C. has rightly rejected the

application for setting aside the ex parte decree passed in the S.C.C. suit against the defendant-revisionist.

Learned counsel for the revisionist has fairly submitted that there has been non-compliance of mandatory provision as contained in Proviso

appended to sub-section (1) Section 17 of the Provincial Small Cause Courts Act in the case at hand.

Having considered the arguments of the learned counsel for the revisionist and on perusal of the record, I do not find any illegality or material

irregularity in the impugned judgment and decree dated 31-5-2012 as well as in the order dated 21-9-2012 passed by the learned J.S.C.C.

whereby the application for setting aside the ex parte decree has been rejected. The impugned orders do not call for any interference by this Court

in revision. The revision being without any force is liable to be dismissed outright at admission stage.

At this stage, the learned counsel for the revisionist has made a request that the revisionist may be allowed reasonable time to make alternative

arrangement and. to vacate the premises in suit. The revision is dismissed. Costs easy. The impugned judgment and decree dated 31-5-2012

passed by the learned J.S.C.C. and the order dated 21-9-2012 passed by him are upheld. To do the complete justice, the revisionist is allowed

six months'' time from today to vacate the premises in suit and to deliver its peaceful and vacant possession to the plaintiff-respondent No. 2

herein, provided the revisionist furnishes a written undertaking before the learned J.S.C.C. to that effect within a period of eight weeks from today

and deposits the entire decretal amount in the said Court. It is further provided that the revisionist shall continue to pay /deposit agreed monthly

rent and taxes by the seventh day of the following month for the previous month for use and occupation of the premises in suit. However, if any

amount is found to have been deposited pursuant to the decree passed by the learned J.S.C.C. shall be adjusted. It is made clear that in case of

default on the part of the revisionist, as directed above, the plaintiff-respondent No. 2 would be at liberty to get the judgment and decree dated

31-5-2012 executed in accordance with law.