Research › Search › Judgment

Uttarakhand High Court · body

2007 DIGILAW 59 (UTT)

ABID HUSSAIN v. RAJESH CHANDRA

2007-02-23

RAJESH TANDON

body2007
JUDGMENT Hon’ble Rajesh Tandon, J. Heard Sri Tanveer Alam, counsel for the revisionist and Sri Sarvesh Agarwal, counsel for the opposite party. 2. By the present civil revision filed under section 115 of the Code of Civil Procedure, applicant-revisionist has prayed for setting aside the order dated 20th April, 2002 by which the application under Order 9 Rule 13 C.P.C. has been rejected. 3. Briefly stated, a suit was filed by the applicant praying for the eviction of the defendant and for the recovery of arrears of rent Rs. 30,036.82 paisa and damages to the extent of Rs. 4,854.67 paisa as well as Rs. 31.26 paisa per day till the eviction taken place. 4. According to the plaint averments, the defendant is a tenant at the rate of Rs. 600 per month from 01.10.1988 and 25% was to be enhanced after 48 months. 5. It has been stated that Act No. 13 of 1972 is not applicable to the shop in dispute as the same was constructed in the year, 1988 and inspite of the notice having been sent on 04.08.1997, which was served upon him on 07.08.1997, the defendant has not vacated the shop, hence the suit for eviction was filed. 6. Judge Small Cause Court has decreed the suit on 23rd November, 2001 for eviction as well as for recovery of Rs. 30.036 and mesne profit to the extent of Rs. 4,854.67 paisa. 7. After the aforesaid suit has been decreed, application was filed under Order 9 Rule 13 of the Code of Civil Procedure, which was objected by the plaintiff stating therein that the applicant has not complied with the provisions of Section 17 of the Provincial Small Cause Courts, but has not disputed the arrears of amount. 8. A perusal of the record shows that the suit has been filed on 5th February, 1998 and in Paragraph 6, it has been stated that the suit premises was constructed in the year, 1988 and the suit was filed in the year, 1998 and as such Act No. 13 of 1972 admittedly does not apply to the premises in dispute. The same has been admitted in paragraph 6 of the written statement. 9. Section 17 of the Provincial Small Cause Courts Act, 1887 reads as under : “17. Application of the Code of Civil Procedure. The same has been admitted in paragraph 6 of the written statement. 9. Section 17 of the Provincial Small Cause Courts Act, 1887 reads as under : “17. Application of the Code of Civil Procedure. — (1) [The procedure prescribed in the Code of Civil Procedure, 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 realized in manner provided by Section [145] of the Code of Civil Procedure, [1908].” 10. In Kedar Nath Vs. Mohan Lal Kesarwani & Ors. 2002 (1) ARC 186, it has been observed as under : “6. 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. IX of 1935. Earlier there were the words “security to the satisfaction of the Court for the performance of the decree of 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 this 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, the applicant must already have made an application in that behalf. As the section stands, an applicant is required to give security to the satisfaction of 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).” 11. Order sheet shows that on 16th March, 2002 the application under Order 9 Rule 13 of C.P.C. was presented and there is no averment of compliance of Section 17 of the Provincial Small Cause Court. 12. From the perusal of the order passed by the District Judge dated 20.04.2002, it appears that no finding has been recorded with regard to the compliance under Section 17 of the Provincial Small Cause Courts. 13. It may be pointed out that the suit was decreed on 23.11.2001 and no revision has been preferred against the said order. Present revision has been filed only against the order disposing of the application filed under order 9 Rule 13 C.P.C. 14. In view of the above, the revision is remitted to the District Judge, who shall record the finding as to whether the application under Order 9 Rule 13 of the C.P.c. was maintainable on the date when the order was passed and in case the same is not maintainable on account of the non-compliance of the mandatory provision of Section 17 of the Provincial Small Cause Court Act as well as in the light of judgment of Kedar Nath Agarwal, it will be open for the District Judge to pass the order accordingly within a period of one month from the date of receipt of certified copy of the order. 15. The District Judge shall pass the fresh order taking into consideration the applicability of the Act to the building in dispute and further with regard to compliance of the provision of Section 17 of the Provincial Small Cause Courts Act. 16. 15. The District Judge shall pass the fresh order taking into consideration the applicability of the Act to the building in dispute and further with regard to compliance of the provision of Section 17 of the Provincial Small Cause Courts Act. 16. Subject to the aforesaid, civil revision is allowed. No order as to costs.