Dev Pal alias Guddu Mistri vs Jalaj Singh

V.K. Shukla, J.—JSCC suit No. 18 of 2002 had been filed by the landlord contending therein that petitioner has been in arrears of rent w.e.f. January, 2001. Said suit in question was decreed on 22.12.2003. Petitioner moved an application under Order IX Rule 13 of C.P.C on 07.01.2004. On 23.02.2004 petitioner moved an application for furnishing security as provided u/s 17(1) of Provincial Small Cause Courts Act 1887. On 28.08.2004 Civil Judge passed order setting aside exparte decree on cost of Rs. 500/- Against the said order Revision was preferred u/s 25 of Provincial Small Cause Courts Act 1887 and said revision has been allowed on 08.12.2004 and the order passed by Judge Small Causes Court was set aside as provision of Section 17 of Provincial Small Cause Courts Act 1887 Act has not at all been complied with. Thereafter an application for review has been moved on 21.12.2004 and said review application has also been rejected. At this juncture present writ petition has been filed.

Learned Counsel for the petitioner Sri Sanjay Kumar Dubey appearing with Sri C.P. Pandey, Advocate contended with vehemence that in the present case gross injustice has been done to his client as orders have been passed without providing any opportunity of hearing and further qua application u/s 17 of Provincial Small Cause Courts Act 1887, no orders whatsoever have been passed, as such Revisional Court in the facts of the present case ought to have remitted the matter back for fresh decision, as such writ petition in question deserves to be allowed.

Countering the said submission Sri K.M. Asthana, Advocate appearing with Sri Shiv Singh Yadav, Advocate submitted that in the present case provision as contained under proviso to Section 17(1) has not at all been complied with, as such orders which have been passed by Revisional Court are rightful orders passed strictly in accordance with law, and as far as review application is concerned, at the point of time when same was taken up learned Counsel for the petitioner was not at all present, as such writ petition deserves to be dismissed.

In order to appreciate respective arguments which has been advanced Section 17 of Provincial Small Cause Courts Act 1887 is being looked into.

Section 17 Application of the Code of Civil Procedure- (1) [The procedure prescribed in the Code of Civil Procedure, 1908 (5 of 1908) shall save in so far as is otherwise provided by the Code or by this Act,] be the procedure followed in a Court of Small Causes, in all suits cognizable by it and in all proceedings arising out of such suits;

Provided that an applicant for an order to set aside a decree passed ex-parte or for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment or give [such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf have directed]

(2) Where a person has become liable as surety under the provision to Sub-section (1) the security may be realised in manner provided by Section [145] of the Code of Civil Procedure, [1908] (5 of 1908).

A bare perusal of provision quoted above would go to show that procedure provided for in CPC has to be followed by Judge Small Causes in all suits cognizable by it and in all proceedings arising out of such suits. Proviso has been added that on applicant for an order to set aside a decree passed ex-parte or for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment or give [such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf have directed. There are two option open to tenant at the point of time of moving application under Order IX Rule 13 C.P.C for setting aside exparte decree, for making said application maintainable (i) deposit is court the amount due from him under decree (ii) or alternatively by prior application request for furnishing security.

The provision as contained under First Proviso to Section 17(1) of the Provincial Small Cause Courts Act 1887 has been subject matter of consideration in the case of Kedarnath Vs. Mohan Lal Kesarwari and Others, . In the said case Hon''ble Apex Court has taken the view that application made without complying with condition and condition of making deposit of due under decree or giving security imposed by proviso to Section 17(1) is mandatory and said condition not being complied application is incompetent and not maintainable. Relevant paragraphs 1, 2, 5, 8 and 9 of the said judgment is being extracted below.:

The landlord-appellant filed a suit for recovery of arrears of rent and for eviction against the tenant-respondents on the ground available under Clause (a) of Sub-section (2) of Section 20 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter U.P. Urban Buildings Act, for short. A suit of the nature filed by the appellant being triable by a Court of Small Causes, as provided by the U.P. Civil Laws Amendment Act, 1972 was filed in the Court of Small Causes, Allahabad. On 9-8-1996, the suit came to be decreed ex parte. The decree directed the tenant-respondents to pay an amount of Rs. 8500/- as pre-suit arrears of rent and a further amount calculated at the rate of Rs. 250/- per month from the date of institution of suit to the date of recovery of possession. A decree for eviction was also passed. The decree was put to execution and on 21-2-1998 the decree-holder obtained possession over the suit premises with police help. The Court amin certified the delivery of possession to the executing Court. On 26-2-1998, the tenant-respondents moved an application under Order 9, Rule 13 of the C.P.C. seeking setting aside of the ex parte decree. Neither the amount due under the decree was deposited nor an application was filed seeking direction of the Court to give security for the performance of the decree in lieu of depositing the decretal amount. On 14-10-1998, arguments were heard on the application under Order 9, Rule 13 of the C.P.C. The Court appointed 16-10-1998 for orders.

It appears that during the course of hearing the appellant decree-holder pointed out to the Court that the application seeking setting aside of the ex parte decree was not maintainable and was liable to be dismissed in limine for non-compliance with proviso to Section 17 of the Provincial Small Cause Courts Act, 1887 (hereinafter, ''the PSCC Act'' for short). On 15-10-1998, the tenant-respondents filed an application praying that they may be permitted to furnish security for payment of decretal amount. The reason assigned for failure to deposit the amount due under the decree or to furnish security along with the application seeking setting aside of the ex parte decree is somewhat oscillating. At one place at is stated that their advocate had never advised them to deposit the decretal amount as the advocate himself was not aware of the provision. Then, at another place, it is stated that the rent was already paid to the landlord decree-holder and there were no arrears required to be deposited. At yet another place it is stated that their advocate had advised them that on the application seeking setting aside of the ex parte decree being allowed and the suit being restored to file, on the first date of hearing the tenant has to deposit the rent in arrears which would be done at that stage only. Vide order dated 15-11-1998, the learned Judge, Small Causes rejected the application filed by the tenant-respondent forming an opinion that ignorance of law was not excusable and the application under Order 9, Rule 13 of C.P.C. filed without complying with proviso to Section 17 of the PSCC Act was not maintainable.

It is not disputed at the Bar that such a suit as was filed by the landlord-appellant is, in the State of U.P., to be heard and disposed of by a Court of Small Causes and hence would be governed by the provisions of the PSCC Act. Section 17 thereof provides as under:

Application of the Code of Civil Procedure.- (1) The procedure prescribed in the Code of Civil Procedure, 1908, shall save insofar as is otherwise provided by that Code or by this Act, be the procedure followed in a Court of Small Causes, in all suits cognizable by it and in all proceedings arising out of such suits:

Provided that an application for an order to set aside a decree passed ex parte or for a review of judgment shall, at the time of presenting the application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed.

(2) Where a person has become liable as surety under the proviso to Sub-section (1), the security may be realised in manner provided by Section 145 of the Code of Civil Procedure, 1908.

It is relevant to note that the proviso to Sub-section (1) of Section 17 has undergone a material change through an amendment brought in by Act No. 9 of 1935. Earlier there were the words "security to the satisfaction of the Court for the performance of the decree or compliance with the judgment, as the Court may direct" which have been deleted and substituted by the present words - "such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in his behalf, have directed." The Statement of Objects and Reasons for the 1935 amendment was set out as under:

The Act is designed to remove certain doubts which have arisen in the interpretation of the proviso to Sub-section (1) of Section 17 of the Provincial Small Cause Courts Act, 1887. As the section stands, an applicant is required to give security to the satisfaction of the Court at the time of presenting his application. It follows that, in order to ascertain what security satisfies the Court, the applicant must already have made an application in that behalf. There is some doubt whether the words "as the Court may direct" apply to the deposit of the whole decretal amount as well as to the giving of approved security. The Act is intended to make it clear that the preliminary application to ascertain what security will satisfy the Court must be made and decided before the substantive application for the order to set aside the decree, and that it always is open to the applicant to adopt the alternative course of depositing the total decretal amount. (Vide Statement of Objects and Reasons, Gazette of India, 1935, Pt. V, p. 90).

A bare reading of the provision shows that the Legislature have chosen to couch the language of the proviso in a mandatory form and we see no reason to interpret, construe and hold the nature of the proviso as directory. An application seeking to set aside an ex parte decree passed by a Court of Small Causes or for a review of its judgment must be accompanied by a deposit in the Court of the amount due from the applicant under the decree or in pursuance of the judgment. The provision as to deposit can be dispensed with by the Court in its discretion subject to a previous application by the applicant seeking direction of the Court for leave to furnish security and the nature thereof. The proviso does not provide for the extent of time by which such application for dispensation may be filed. We think that it may be filed at any time up to the time of presentation of application for setting aside ex parte decree or for review and the Court may treat it as a previous application. The obligation of the applicant is to move a previous application for dispensation. It is then for the Court to make a prompt order. The delay on the part of the Court in passing an appropriate order would not be held against the applicant because none can be made to suffer for the fault of the Court.

In the case at hand, the application for setting aside ex parte decree was not accompanied by deposit in the Court of the amount due and payable by the applicant under the decree. The applicant also did not move any application for dispensing with deposit and seeking leave of the Court for furnishing such security for the performance of the decree as the Court may have directed. The application for setting aside the decree was therefore incompetent. It could not have been entertained and allowed.

Thus, judgment of Hon''ble Apex Court is clear on this score that provision of Section 17(1) are mandatory in nature and has to be complied with.

Here in the present case factual position which is emerging and qua which there is no dispute that JSCC suit was decreed on 22.12.2003 and for setting aside said decree in question application under Order IX Rule 13 of C.P.C was moved on 07.01.2004. At the point of time when said application under Order IX Rule 13 C.P.C was moved within period of 30 days, as per the proviso to Section 17(1) of Provincial Small Cause Courts Act 1887 neither decretal amount due under decree not security has been furnished and as application to furnish security was moved after expiry of period of 30 days on 23.02.2004. Once application for compliance of Section 17(1) of Provincial Small Cause Courts Act 1887 has been moved subsequent to filing of application under Order IX Rule 13 of C.P.C , that to after expiry of period of 30 days, application under Order IX Rule 13 of C.P.C could not have been entertained in view of judgment of Hon''ble Apex Court in the case of Kedarnath Vs. Mohan Lal Kesarwari and Others, wherein provision as contained under proviso to Section 17(1) of the Provincial Small Cause Courts Act 1887 has been subject matter of consideration.

Once rightful order has been passed by District Judge in Revision clearly taking view that application under Order IX Rule 13 C.P.C for setting aside exparte decree was not maintainable, and said view taken is in consonance with the judgment of Hon''ble Apex Court in the case of Kedarnath Vs. Mohan Lal Kesarwari and Others, then there is no infirmity. Revisional Court has not committed any error in allowing the Revision and rejecting the application under Order IX Rule 13 of C.P.C. on admitted position which has emerged.

Consequently, present writ petition is dismissed.