Devendra Gupta Alias Tinku & Others vs Usha Devi & Others

Manoj K. Tiwari, J

This civil revision has been filed along with delay condonation application. The delay condonation application not seriously opposed. Accordingly, delay condonation application (CLMA No. 1062 of 2018) is allowed.

This is tenants' civil revision, under Section 25 of the Provincial Small Cause Courts Act against the order dated 29. 09.2016 passed by learned Judge, Small Cause Court/1st Additional District, Haldwani, District Nainital in Miscellaneous Case No. 5 of 2015, whereby their application under Order 9 Rule 13 of C.P.C. has been rejected for non-compliance of Section 17 of the Provincial Small Cause Courts Act.

Respondent - Smt. Usha Devi (respondent herein) filed a suit for arrears of rent, damages and ejectment against the revisonists before learned Judge Small Cause Courts, Haldwani, which was registered as SCC Suit No. 14 of 2012. Since the revisionists did not appear before the trial court despite service of notice, therefore, learned trial court passed order to proceed ex-parte against them. Subsequently, ex-parte decree was passed against the revisionists on 23.07.2014. The revisionists moved an application under Order 9 Rule 13 of C.P.C. for setting aside ex-parte decree on the ground that the notice issued by the trial court was not duly served upon all the tenants. The said application moved by the revisionists under Order 9 Rule 13 of C.P.C. was rejected by learned trial court vide order dated 29.09.2016, against which this civil revision has been filed.

Section 17 of the Provincial Small Cause Courts Act (from hereinafter referred to as 'Act') is extracted below for ready reference:-

"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 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 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 proviso to sub-section (1), the security may be realised in manner provided by section 145 of the Code of Civil Procedure, (5 of 1908)."

A bare perusal of the aforesaid provision indicates that legislature has chosen to couch the language of the proviso in a mandatory form, therefore, 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 regarding 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. Hon'ble Supreme Court in the case of Kedarnath Vs Mohan Lal Kesarwari & others reported in (2002) 2 SCC 16 has held that the applicant, who seeks to set aside an ex-parte decree passed by a court of small causes has to deposit in court the amount due from him under the decree or in pursuance of the judgment/decree at the time of presenting his application. It was further held that the applicant can pray for dispensing with the said requirement and seek leave to furnish security; however, such application has also to be filed before presentation of the application for setting aside ex-parte decree. Para Nos. 8 and 9 of the said judgment are extracted below:-

"8. 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."

Learned trial court has held that the application under proviso to Section 17 of the Act was filed on 20.11.2015 while the application 4C for setting aside ex-parte decree was moved on 21.02.2015, thus there was a delay of nine months in moving application under Section 17(1) of the Act. It was further held that all the revisionists reside at the same address and all of them were duly served and in fact Sri Jitendra Gupta (revisionist No. 2) had sought adjournment on two dates and thereafter the case file was transferred from the court of District Judge, Nainital to the court of 1st Additional District Judge, Haldwani in the presence of both the parties.

Be that as it may, the fact remains that the revisionist had not deposited the amount due from them under the decree in court at the time of presenting the application under Order 9 Rule 13 of C.P.C., which has been held mandatory by Hon'ble Supreme Court in the case of Kedarnath (supra), therefore, learned court below was justified in rejecting the application for setting aside ex-parte decree filed by the revisionists. This Court does not find any good ground to interfere with the impugned order passed by the learned court below.

According, civil revision is dismissed.  No order as to costs.