Mijjan v. IInd Additional District Judge, Lucknow — 1986 DIGILAW 672 (ALL)

JUDGMENT P. Dayal, J. - Mijjan filed this writ petition for quashing the judgments and decrees dated 18.4.1978, 5.3.1979 and 11.3.1979 contained in Annexures 3, 4 and 6, respectively of the writ petition. 2. The opposite party No. 3 Radhey Lal filed Civil Suit No. 349 of 1970 in the Court of Munsif (North), Lucknow on 10.8.1970 which was transferred to the Court of JSCC on 8.1.1972. It was again transferred on 19.7.1977 to the Court of Munsiff (North) in his capacity as JSCC. He received the file on 10.8.1977. Ex parte evidence was recorded on 7.12.1977 and the ex parte decree was passed on 8.4.1978. The petitioner Mijjan moved an application on 2.5.1978 for setting aside the ex parte decree which was dismissed vide Annexure 4. He preferred a revision vide Annexure 5. His revision was dismissed on 11.8.1979 vide Annexure 6, on the ground that there has not been any compliance of Section 17 of the SCC Act. Thereafter, he preferred the present writ petition. 3. The only point that arises for decision in this writ petition is that whether the provisions of Section 17 of the SCC Act are applicable to this case and if so has there been any compliance of the case. 4. The suit was filed for recovery of Rs. 339.50 as arrears of rent Rs. 7.00 as damages for 346.40 and for ejectment and also for future damages for use and occupation. The arrears of rent were claimed for the period between 16.5.1970 and 3.7.1970. The suit was decreed for Rs. 346.40 and damages for use and occupation at the rate of Rs. 6/- per month. The judgment-debtor claimed to have deposited a sum of Rs. 454.40 on 27.11.1976 and a sum of Rs. 27.00 in September, 77. According to him, a sum of Rs. 4871/- thus stood deposited by the petitioner in Court on 2.5.1978 when he moved an application for setting aside the ex parte decree. 5. The contention of the petitioner is that the decree for amount of damages for use and occupation was certainly passed but that amount should not be counted as decretal amount for the purposes of Section 17 of SCC Act and that there has thus been a substantial compliance of the provisions of Section 17 which should be liberally interpreted. 6. The contention of the petitioner is that the decree for amount of damages for use and occupation was certainly passed but that amount should not be counted as decretal amount for the purposes of Section 17 of SCC Act and that there has thus been a substantial compliance of the provisions of Section 17 which should be liberally interpreted. 6. The suit was triable in the SCC side, therefore, the provisions of Section 17 of the SCC Act were applicable in this case. 7. The proviso to Section 17 lays down that application for an order to set aside a decree passed ex parte or for a review of judgment the applicant 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. 8. The amount due clearly indicates that the entire decretal amount, including the amount of damages for use and occupation has to be deposited along with an application for setting aside an ex parte decree. 9. The petitioner relied on the case of Ram Saran Dass Tara Chand v. Ram Richpal L. Mannu Lal and another, AIR 1963 Punjab 206, in which case the amount calculated by the judgment-debtor on the basis of estimated cost was found to be less than actual decretal amount it was held that there has been a substantial compliance or the requirements of Section 11. But in the instant case the amount which was required to be deposited with the application calculated to about Rs. 965.40 and the petitioner has deposited an amount of Rs. 480/- only. So this case is not helpful to the petitioner. The petitioner further relied on the case of Ram Bharose v. Ganga Singh, AIR 1931 Allahabad 727, in which case all possible methods of complying with Section 17 were illustrated, but the facts of the case of the petitioner did not fall in any of those illustrations. He could seek permission for furnishing security but he did not seek furnishing security but he did not seek any permission also. He further relied on the case of Kallu Mal v. Ch. He could seek permission for furnishing security but he did not seek furnishing security but he did not seek any permission also. He further relied on the case of Kallu Mal v. Ch. Bikramjeet Singh, AIR 1963 Allahabad 13, in which case it was held that the "amount due under the decree" meant the amount due under the decree at the date it is given and not the amount due at the date when the application for restoration is presented. But in the instant case the petitioner did not deposit the amount due at the date of decree. The petitioner relied on the case of M/s. Karam Chand Mohan Singh v. M/s. Basheshwar Nath & Co., AIR 1973 Himachal Pradesh 9, which case also is not helpful to him because he did not simultaneously move an application for permission to furnish security. He further relied on the case of Bhagwan Das Arora v. First Additional District Judge Rampur, AIR 1983 Supreme Court 954, in which case the security bond was furnished in time but it was stamped with a court-fee stamp of Rs. 2/- and the application was allowed. The facts of the said case are absolutely different from the facts of the instant case where any permission to furnish the security was not even obtained. As such none of these cases is helpful to the petitioner. 10. The opposite parties relied on the case of Gayatri Devi v. The District Judge, Gorakhpur and others, 1982(1) ARC 447, in which case it was held that the amount required to be deposited in compliance of the proviso to Section 17(1) includes amount of mesne profit pendente lite and future also. He further relied on the case of Nakse Ram v. The IInd Addl. District Judge, Aligarh and others, 1982 ARC 257, in which case it was held that damages payable upto the date of an application have to be deposited along with the decretal amount and mesne profits etc. even if court-fee was not paid by the plaintiff on pendente lite and future damages and that non-deposit of such damages amounts to non-compliance of Proviso to Section 17(1). even if court-fee was not paid by the plaintiff on pendente lite and future damages and that non-deposit of such damages amounts to non-compliance of Proviso to Section 17(1). The same view was held in the case Ravi Shankar v. The Additional District Judge, Aligarh and others, 1982(2) ARC 109, as well in the case M/s. P.C. Dawadasharani & Company Private Ltd. v. IIIrd Additional District Judge Aligarh and others, 1982(2) ARC 176. The same view was held in the case of Smt. Karmo Bai v. IInd Additional District Judge, Nainital and others, 1983(2) ARC 455, as in the case Roop Basant v. Durga Prasad and another, 1983 (2) ARC 565. 11. Thus, there has not been any compliance of provisions of Proviso to Section 17(1) of the Act. It was not necessary that the decree holder was required to pay additional Court-fee and mesne profits before the judgment-debtor would have been called upon to comply with these provisions. The contention of the petitioner that he had no knowledge of the transfer of the case has also no force as it is evident from the record that he had knowledge of the costs. 12. Accordingly, this petition is dismissed. No order is made for the same.