Shiv Shanker Singh vs IVth Addl. District Judge and Others

Bhagwan Din, J.—By this petition, the Petitioner seeks a writ in the nature of certiorari quashing the judgment and order dated 29.7.1987 passed by the Judge Small Causes Court and judgment and order dated 4.9.1987 passed by revisional court in S.C.C. Revision No. 98 of 1987.

A suit for ejectment, recovery of arrears of rent and damages was decreed ex parte on 12.3.1986 against the Petitioner. He, therefore, filed an application on 10.4.1986 under Order IX, Rule 13, CPC for setting aside the ex parte decree. On 11.4.1986 he moved an application for adjustment of Rs. 1,044 deposited by him u/s 30(1) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as Act No. 13 of 1972) and also permission to deposit the balance of Rs. 1,700 in compliance of Section 17(1) of the Judge Small Causes Court Act. After hearing the parties the Judge Small Causes Court rejected the application on 24.5.1986 for adjustment of the money deposited u/s 30(1) of Act No. 13 of 1972. Then the Petitioner deposited Rs. 1.044 on 28.5.1986. The Judge Small Causes Court despite of that rejected the application under Order IX, Rule 13, CPC on the ground that an amount of Rs. 1,700 was deposited on 24.4.1986 and the balance of Rs. 1,044 has been deposited on 28.5.1986 after expiry of the prescribed period of 30 days. Thus there was no full compliance of Section 17 (1) of the Judge Small Causes Court Act.

Against this order, the Petitioner filed a revision before the District Judge, which was ultimately dismissed by IVth Additional District Judge, Kanpur Nagar by impugned order dated 4.9.1987 holding that though the application for setting aside the ex parte decree has been filed within the limitation but an amount of Rs. 1,044 was deposited on 28.5.1986, thus the compliance of Section 17 (1) of the Judge Small Causes Court Act has not been made within 30 days.

Heard the learned counsel for the parties. The short question falls for consideration before me is that the rent deposited u/s 30(1) of Act No. 13 of 1972 may be adjusted in compliance of Section 17 (1) of the Judge Small Causes Court Act.

The contention of the learned counsel for the Petitioner is that both the Courts below have committed an error in holding that the deposit of rent u/s 30(1) of Act No. 13 of 1972 is not adjustable in the deposit to be made in the Court the amount due from him under the decree or in pursuance of the judgment and also that the deposits whatsoever made by the tenant (Petitioner) was time barred. On the other hand, learned counsel for the Respondents urged that the deposits made u/s 30(1) of Act No. 13 of 1972 can be utilised for the purposes of deposit required u/s 20(4) and Section 39 of the Act. It cannot be utilized for a satisfaction of requirement of Section 17(1) of the Judge Small Causes Court Act. Admittedly the Petitioner has deposited Rs. 1,700 within the stipulated period. He has, however, prayed before the Court below that the balance of Rs. 1,044 to be considered to have been adjusted with the deposits made u/s 30(1) of Act No. 13 of 1972 and. therefore, treating thus the money so deposited be deemed to have been the deposits in compliance of Section 17(1) of Judge Small Causes Court Act. The Court below has rejected the application and allowed time till 24.5.1986 to deposit Rs. 1,044. Since the Petitioner has not made deposits within the period allowed by the Court, it would be deemed, the Petitioner, therefore, will not be allowed to get benefit of such deposit. However, as it relates to the other points regarding the adjustment of the amount deposited u/s 30(1) of Act No. 13 of 1972 towards the compliance of Section 17 of Judge Small Causes Court Act adverting to the proviso of Section 17 of Judge Small Causes Court Act necessary which reads as under:

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 of compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed.

The object behind this proviso is that unscrupulous tenants against whom rent is due, who do not appear on the date fixed by the Court may not take advantage of not paying the rent and thereby causing harassment to landlord. It is often found that Defendants of the suit do not appear with a purpose that an ex parte decree would be passed and then application for setting aside of the ex parte decree would be made, thereby prolonging that litigation. This proviso consequently protects the landlord from further harassment and secures the payment of rent. Similarly Section 39 requires the tenant to pay admitted rent with interest at the rate of Rs. 9% on the first date of hearing to protect from being evicted. Such deposited are also a security to the amount of rent which has fallen due against the tenant. If the tenant is not made legally bound to make such deposits, he may drag the litigation to the longest period of his desire. Thus, both the deposits made by the tenant are the security to the interest of the landlord.

The amount deposited u/s 30(1) of the Act is payable to landlord on his application for withdrawal either during the pendency of the suit or after the final decision in his favour. By an ex parte decree the suit for ejectment, recovery of arrears of rent and damages deemed to have been decided in favour of the landlord, so if the ex parte decree is not set aside, the landlord would be entitled to receive such deposits made u/s 30(1) of Act No. 13 of 1972 to the satisfaction of the decree. On this analogy if the application under Order IX, Rule 13, CPC fails, the landlord would have right to withdraw the money deposited as above and proceed to execute the decree for recovery of rent of the decretal amount. Therefore, I am of the view that the money deposited u/s 30(1) is adjustable in the compliance of the proviso to Section 17 (1) of the Judge Small Causes Court Act. So even if the deposit of Rs. 1,044 beyond the period of limitation, the application under Order IX, Rule 13, CPC cannot be rejected because the money, which has already been deposited by the Petitioner, is adjustable. Both the Courts below have, therefore, committed an error in rejecting the application on the aforementioned grounds.

In the result, the petition succeeds and is allowed and the orders of the Court below dated 29.7.1987 and 4.9.87 are set aside. The application under Order IX, Rule 13, CPC is allowed and the Judge Small Causes Court will proceed in accordance with law.