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Allahabad High Court · body

2009 DIGILAW 2590 (ALL)

VIJENDRA KUMAR v. BHAGWAT DAYAL

2009-07-17

SHASHI KANT GUPTA

body2009
JUDGMENT Hon’ble Shashi Kant Gupta, J.—This revision is directed against the order dated 6-7-1985 passed by First Additional District Judge, Meerut in Misc. Case No. 34 of 1984 whereby the application of the revisionist for setting aside ex-parte decree has been rejected with costs for non-compliance of proviso to Section 17 of Provincial Small Causes Court Act (hereinafter referred to as the Act). 2. The background facts in a nutshell essentially are as follows : 3. The revisionist was a tenant of the disputed shop in question at a monthly rent of Rs. 175/- per month. Suit No. 20 of 1984 for arrears of rent and ejectment was filed by the plaintiffs opposite parties. The defendant was served by publication, but he did not turn up to contest the suit. The plaintiff’s suit for arrears of rent and ejectment was decreed on 18-8-1984. The operative portion of the order dated 18-8-1984 is quoted below : “The plaintiffs suit for the recovery of arrears of rent, interest and costs of service of notice for damages for use and occupation till 4-3-1984 and for ejectment of the defendant as prayed, is decree ex parte with costs. The plaintiffs are, however,entitled to pendente lite and future damages for use and occupation at the rate of Rs. 175/- per month alone upon payment of Court fee in the execution department.” 4. An application for setting aside ex parte decree passed in SCC Suit No. 20 of 1984 was filed under Order 9 Rule 13, C.P.C. The said application was dismissed by judgment and order dated 6-7-1985 for non-compliance of proviso to Section 17 of the Act. Hence the present revision. 5. It is submitted by the learned counsel for the revisionist that the applicant was never served with the summon of the case and he came to know of the proceeding on 26-8-1984 for the first time and he appeared and moved an application for setting aside the order to proceed ex parte, but the application was rejected on technical ground. Hence the application for setting aside the decree was filed by the applicant. Impugned order was passed by the Court below mainly on the ground that the entire decretal amount as awarded under the decree was not deposited, as such proviso to Section 17(1) of the Act was not complied with. Learned counsel for the applicant has submitted that Rs. Hence the application for setting aside the decree was filed by the applicant. Impugned order was passed by the Court below mainly on the ground that the entire decretal amount as awarded under the decree was not deposited, as such proviso to Section 17(1) of the Act was not complied with. Learned counsel for the applicant has submitted that Rs. 8,000/- was deposited by the applicant towards the decretal amount due under the decree, but has admitted that there was a short fall of Rs. 800/- in depositing the entire decretal amount. 6. Learned counsel for the applicant-revisionist has submitted that the decree was passed on 18-8-1984 and thereafter he moved an application for setting aside the decree on 23-8-1984. The deposit of the entire decretal amount was not made as the decree was not prepared till then. He moved an application for preparation of the decree and presented tender of Rs. 8,000/- on 17-9-1984 and the said amount was deposited on 20-9-1984. It was further submitted that the entire decretal amount could not be deposited since it was not specifically mentioned in the decree, as such on account of mis-calculation, correct decretal amount could not be deposited. However, the substantial compliance of proviso to Section 17 of the Act was made. Thus, therefore, the Court below has committed a manifest error of law in passing the impugned order. 7. On the other hand learned counsel for the landlord has supported the impugned order passed by the Court below and has submitted that deficiency in depositing the decretal amount was of around Rs. 1,145/- and, as such, it cannot be said that substantial compliance of the proviso to Section 17 of the Act was made. It was submitted that the applicant was avoiding the Court in order to prolong the proceeding and despite publication of the notice in the newspaper he did not appear before the Court below on the date fixed. As such the Court had no other option but to proceed ex-parte. Learned counsel for the plaintiff opposite party has contended that the proviso to Section 17 of the Act is mandatory in nature and admittedly there was short fall in depositing the entire decretal amount and the Court below was fully justified in rejecting the restoration application for want of compliance of Section 17 of the Act. 8. Learned counsel for the plaintiff opposite party has contended that the proviso to Section 17 of the Act is mandatory in nature and admittedly there was short fall in depositing the entire decretal amount and the Court below was fully justified in rejecting the restoration application for want of compliance of Section 17 of the Act. 8. Learned counsel for the plaintiff respondent has submitted that provision of Section 17 of the Act is mandatory in nature and no indulgence can be granted and has placed reliance on the following decisions : Kedarnath v. Mohan Lal Kesarwani, AIR 2002 SC 582 ; Dinesh Kumar Dubey v. Ganga Shanker Tiwari, 2006 (6) ALJ 554 and Lalji Gupta and another v. District Judge/Special Judge, Allahabad, 2006 (6) ALJ 359. 9. Heard Sri Y.S. Bohra, learned counsel for the revisionist and Sri Amit Kumar Chaudhary, learned counsel for the respondent and perused the record. 10. The application for setting aside ex-parte decree dated 18-8-1984 filed before the Court below has been rejected on the sole ground that full decretal amount was not deposited within the meaning of proviso to Section 17 of the Act. According to the learned counsel for the revisionist, the short fall was of Rs. 800/- however, according to the learned counsel for the respondent the short fall was of Rs. 1,145/-. In any view of the matter, admittedly the short fall in deposit of the decretal amount was of Rs. 800/-. The case of the revisionist is that since the amount was not mentioned in the decree, as such, confusion crept in the mind of the revisionist and due to mis-calculation entire decretal amount could not be deposited and there was a short fall of Rs. 800/-. 11. The operative portion of the judgment and order dated 28-8-1984 passed by the Court below as noticed here in earlier clearly provide details of the amount to be deposited by the revisionist. As such the revisionist cannot take shelter behind the plea that since, no specific amount was mentioned in the decree, he was unable to calculate the decretal amount correctly. Therefore, this argument of the revisionist- applicant that decretal amount was not mentioned in the decree, has no force and cannot be sustained. 12. As a corollary to the aforesaid submission, learned counsel for the revisionist has further submitted that since there was only a short fall of Rs. Therefore, this argument of the revisionist- applicant that decretal amount was not mentioned in the decree, has no force and cannot be sustained. 12. As a corollary to the aforesaid submission, learned counsel for the revisionist has further submitted that since there was only a short fall of Rs. 800 after the deposit of Rs. 8,000/-, as such, proviso to Section 17 of the Act stands substantially complied with, however, the Court below has taken a very technical view of the matter and illegally and arbitrarily rejected the restoration application and in support of his contention has placed reliance upon the decision in the case of Mohan Lal and another v. Additional District Judge, Nainital and others, AIR 1989 All 176 and has referred to paragraph 9 of the said judgment which reads as under : “9. In regard to the third contention raised by the learned counsel for the petitioners, learned counsel relied in support of his submission on a decision of this Court given by Hon’ble R.B. Mishra, J. as he then was in Dullah Prasad v. Rajeshwari Bibi, AIR 1977 All 151. In this decision, Hon’ble R.B. Misra, J. has taken the view after analysing various cases and the provisions of Section 17 of the Provincial Small Causes Court Act that once an application for depositing cash security was accepted by the Court, there was sufficient compliance of the requirements of the second part of Proviso and even if the security furnished by an applicant was little less than the decretal amount, but if it satisfied the Court, no exception could be taken to any deficit in the deposit of the cash amount. I respectfully agree with this decision.” 13. Learned counsel for the revisionist has further placed reliance in the case of Suresh Chand v. VIIth Additional District Judge, Muzaffarnagar, 1991(2) ARC 545 . The Court has observed in paragraphs 10 and 11 as follows : “10. The cardinal principle of interpretation of a statute is that the construction should be so adopted which may facilitate the smooth working of the scheme of the Act. It should be in conformity with the object sought to be achieved. It should be to promote justice and avoid unreasonableness. It should not allow artificiality in law. 11. The cardinal principle of interpretation of a statute is that the construction should be so adopted which may facilitate the smooth working of the scheme of the Act. It should be in conformity with the object sought to be achieved. It should be to promote justice and avoid unreasonableness. It should not allow artificiality in law. 11. Section 17 of the Act being only procedural in nature has to be interpreted in such a way as to advance justice and to facilitate to meet its end. The provision is to be liberally construed. The Court has to see that substantial compliance has been done. Reference may be made to a case reported in AIR 1983 SC 355 , Bhagwan Swarup and others v. Mool Chand and others.” 14. On the other hand learned counsel for the landlord has contended that there was a short fall of Rs. 1,145/-, as such, it cannot be said that substantial compliance was made. The rate of the rent of the disputed shop was Rs. 175/- per month, therefore the short fall of rent was of more than four months and it cannot be said that substantial compliance of proviso to Section 17 was made by the revisionist. 15. Learned counsel for the respondent has stated that proviso to Section 17 is mandatory in nature and in support of his contention has placed reliance on the decision of Supreme Court in the case of Kedar Nath v. Mohan Lal (supra) and has referred to paragraph 8 of the judgment : “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 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. (Emphasis supplied) 16. The cases of Mohan Lal and another (supra) and Suresh Chandra (supra) are clearly distinguishable and has no bearing on the case in hand. It is true that Section 17 of the Act should be interpreted in such a way as to advance justice and to facilitate to meet its end and the Court has to see that substantial compliance has been done or not. But in the present case, admittedly there was a short fall of Rs. 800/- and the said amount cannot be said to be a meagre amount particularly when the rate of rent was Rs. 175/- per month and there was a short fall of rent of more than four months. Thus, there was no substantial compliance of the proviso to Section 17 of the Act. 17. The trial Court in the circumstances has rightly held the compliance of Section 17(1) of the Act has not been made which was mandatory, hence the application under Order 9 Rule 13, C.P.C. has been rightly rejected. 18. In view of the above discussion, I do not see any illegality or infirmity in the impugned order dated 6-7-1985. The revision is accordingly dismissed. ———