Research › Search › Judgment

Allahabad High Court · body

2009 DIGILAW 3193 (ALL)

Jai Prakash Pandey v. Baboo Lal Jaiswal

2009-10-05

PRAKASH KRISHNA

body2009
JUDGMENT Prakash Krishna, J The present revision has been filed by the defendant-tenant against the order dated 8.7.2003 passed by the District Judge, Kanpur Nagar in Misc. Case No.255/74 of 2003 whereby the Court below has rejected the application filed by the defendant-tenant under Order 9 Rule 13 CPC for recalling the ex parte judgement dated 27.2.2003 passed in SCC Suit No. 53 of 2002. 2. Baboo Lal Jaiswal, the opposite party herein (hereinafter called as landlord) instituted SCC Suit No.53 of 2002 against Jai Prakash Pandey the applicant herein, called as tenant hereinafter, for recovery of arrears of rent, damages and ejectment in respect of two shops on the ground floor of Premises No. 133/266-P-1 Transport Nagar, Kanpur. The suit was instituted on the pleas inter alia that the said shops were let out to the tenant on a monthly rent of Rs.1,000/- whose tenancy has been determined by means of a notice dated 8.10.2002 sent through Shri Sanjay Dixit, Advocate. The tenant inspite of the service of the notice to quit failed to pay the arrears of rent due from him for the period 1.2.2000 to 30.9.2002 amounting to Rs.32,000/- besides house tax and drainage tax. 3. 23rd December 2002 was the date fixed in the suit for filing the written statement. The tenant appeared on that date and sought for and was granted adjournment for filing the written statement and 13.1.2002 was the next date on which date also the suit was adjourned on the request of the defendant and 18.1.2003 was the next date fixed. On 18.1.2003 again adjournment was sought for and was granted fixing 1.2.2003. On 1.2.2003 again adjournment was sought for but was refused by the trial court on the ground that the defendant-tenant has not paid the cost as was awarded on the earlier occasion. However, it fixed 26.2.2003 for recording of ex parte evidence. The evidence was recorded on that date and the suit was ultimately decreed ex parte on 27.2.2003. 4. An application under Order 9 Rule 13 CPC dated 21.3.2003 supported with an affidavit was filed by the tenant to set aside the ex parte judgement and decree dated 27.2.2003 on the ground that the tenant was prevented by sufficient cause as he was confined to bed and was under medical treatment. He could not instruct his counsel to file the written statement. He could not instruct his counsel to file the written statement. It was stated that he is an old person and was suffering with various ailments and again fell ill on 20.1.2003 and therefore he could not appear on 1.2.2003 and gave the information of the illness through telephone to his counsel. In the affidavit, it has been mentioned that he is enclosing the medical certificate of Dr.Shiv Mangal Singh (but the Court has found that no such medical certificate was enclosed along with the affidavit). Along with the above application, an application for staying the execution of the ex parte decree was filed wherein besides the plea of his illness, it was stated that in the light of the ex parte judgement, the tenant is enclosing a tender for Rs.20,000/- and is prepared to pay the security for the balance amount. It also appears that another application was filed praying that a report from the concerned Clerk as to how much amount is required to be deposited may be called for so that the applicant may comply with the provisions of Section 17 of the Provincial Small Causes Court Act. 5. The said application was contested by the landlord by filing counter affidavit on the ground that the tenant was not prevented by any sufficient cause and the cause shown in the application for setting aside the ex parte decree is concocted and bogus. It was further stated that the tenant has not deposited the requisite amount as required under Section 17 of the Provincial Small Causes Court Act and as such the application is liable to be dismissed. 6. The Court below by the impugned judgement dated 8.7.2003 dismissed the application of the tenant on two counts. Firstly, the tenant has failed to prove that he was prevented by sufficient cause in not filing the written statement for contesting the suit on merits. The tenant has taken contradictory pleas and no reliance can be placed upon the affidavit filed in support of the application. Moreover, it was observed that the medical certificate has not been annexed as a part of the affidavit although it mentions so. The tenant has not been able to prove his illness and the medical certificate has not been proved. It has noticed the various inconsistent and improbable pleas raised in the different paragraphs of the affidavits. Moreover, it was observed that the medical certificate has not been annexed as a part of the affidavit although it mentions so. The tenant has not been able to prove his illness and the medical certificate has not been proved. It has noticed the various inconsistent and improbable pleas raised in the different paragraphs of the affidavits. Secondly, the application is not maintainable as there is no compliance of provisions of Section 17 of Provincial Small Causes Court Act, which is mandatory. 7. Challenging the aforesaid order, the present revision has been preferred. Shri Kushal Kant, learned counsel for the applicant has challenged the judgement of the court below only on the question of compliance of Section 17 of the Provincial Small Causes Court Act. He submits that in all the tenant has deposited a sum of Rs.45,000/- out of which Rs.20,000/- was deposited on 21.3.2003 and Rs.25,000/- was deposited subsequently on 19.4.2003. The submission is that the tenant has substantially complied with the provisions of Section 17 of the said Act. His bonafide is further established from the fact that he had filed an application before the trial Court praying that the office be directed to calculate the decretal amount which may be deposited by the tenant without any further delay. The Court was taken through the undated application termed as stay application and the affidavit filed in support thereof being page 66 to 68 of the paper book. Reference was also made to the application of March 2003 (day is missing) on page 69 of the Paper Book wherein it has been prayed that a report from the concerned clerk with regard to the amount required to be deposited may be called for so that the statutory compliance can be made within time. 8. The learned counsel for the landlord, on the other hand submits that the Apex Court in the case of Kedar Nath versus Mohan Lal Kesarwari & others 2002(1) ARC 186 has held that the provisions of Section 17 of the Provincial Small Causes Court Act are mandatory in nature and non compliance would entail dismissal of the application and such non compliance cannot be condoned or overlooked by the Court. Elaborating the argument, he submits that if in the ex parte judgement , the suit for recovery of arrears of rent amounting to Rs.33,300/- and Rs.200/- as arrears of damages and for recovery of pendente lite and future damages till the date of actual possession is decreed. This being so, there is no justification for non depositing the said amount at least. 9. Considered the respective submissions of the counsel for the parties and perused the record. The operative portion of the ex parte judgement, for the sake of the convenience, as contained on page 53 of the paper book is reproduced below: "Plaintiff's suit for ejectment of the defendant from the premises in suit and for recovery of arrears of rent amounting to Rs.33,300/- Rs.200/- as arrears of rent, damages and for recovery of pendente lite and future damages till the date of actual possession is decreed ex parte with ex-parte cost". 10. There appears to be some typographical error in the copy of the judgement but the fact remains that the suit for recovery of arrears of rent amounting to Rs.33,300/-, besides the other relief was decreed. This being so, there was obviously no justification for not depositing the said amount at least, by the tenant. The ad hoc deposit of Rs.20,000/- along with the application under Order 9 Rule 13 CPC cannot be justified by any stretch of imagination, as compliance of the proviso to Section 17(1) of the Provincial Small Causes Court Act. There is indisputably no application on behalf of the tenant for seeking permission to furnish security in lieu of the deposit of the decretal amount. Having noticed the factual position of the case, it is now desirable to consider the import and impact of the proviso to Section 17(1) of the Provincial Small Causes Court Act. "17. There is indisputably no application on behalf of the tenant for seeking permission to furnish security in lieu of the deposit of the decretal amount. Having noticed the factual position of the case, it is now desirable to consider the import and impact of the proviso to Section 17(1) of the Provincial Small Causes Court Act. "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 application for an order to set aside a decree passed ex-parte or for a review of judgement shall, at the time of presenting the application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgement, or give such security for the performance of the decree or compliance with the judgement as the Court may, on a previous application made by him in this behalf, have directed." 11. The said proviso came up for consideration before the Apex Court in the case of Kedar Nath versus Mohan Lal Kesarwari & others (supra) wherein the Supreme Court has held as follows: "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 judgement 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. 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) 12. In the case on hand, the application for setting aside the ex parte decree was not accompanied by the requisite deposit in the Court of the amount due and payable by the tenant under the decree. Only a sum of Rs.20,000/- was deposited while as a matter of fact a sum more than Rs.33,200/- was required to be deposited. The deficiency has been sought to be made good subsequently by making a deposit of Rs.25,000/- on 19.4.2003. The law requires that the requisite deposit as per the provisions to Section 17(1) of Provincial Small Causes Court Act has to be made on a previous application filed by the applicant in this behalf. The application under Order 9 Rule 13 was made on 21.3.2003 and on that date only a sum of Rs. 20,000/- was deposited. Any deposit made subsequent to the date of the application i.e 21.3.2003 in the present case is of no avail to the tenant (applicant). 13. Much emphasis was laid by the learned counsel for the applicant on the application of March 2003 whereby the tenant requested the court that a report from the concerned clerk as to how much amount was required to be deposited may be called for. No person can be permitted to defeat the above statutory provision and take the shelter of such an application, which is not called for. No person can be permitted to defeat the above statutory provision and take the shelter of such an application, which is not called for. The filing of the said application is not at all bonafide in view of the fact that the tenant was in arrears of rent and damages for more than 33 months and in the judgement it has been specifically mentioned that the tenant is liable to pay a sum of Rs. 33,200/- besides the damages, pendente lite and future till the date of actual delivery of possession. This being so, there could not possibly be any dispute for not depositing the rent at least to the extent of Rs.33,200/-. No calculation etc. of the amount was required upto the extent of Rs.33,200/- as it was already calculated in the judgement by the Court. Apart from the above, it was the duty of the applicant to have calculated the mense profit/damages pendente lite and future damages as per the judgement itself. To me, it appears that the said application was filed by the tenant to gain time and it cannot be termed at all as a bonafide application. Nor such an application is maintainable. 14. In view of above discussion, I find that the finding recorded by the trial Court with regard to non compliance of the provisions of Section 17 of the Provincial Small causes Court Act and therefore, non maintainability of the application is perfectly justified and calls for no interference. 15. No attempt was made by the learned counsel for the applicant to challenge the finding recorded by the trial Court holding that the applicant was not prevented by sufficient cause for his non appearance on the date fixed in the case. A bare perusal of the judgement would show that the trial Court has taken into consideration the relevant aspects of the case and has rightly reached to the conclusion that the tenant was getting the case adjourned on one pretext or the other and has failed to prove the allegations that he was ill and confined to bed during the relevant period of time. The tenant has failed to prove the medical certificate of his illness. The trial Court has rightly noticed that the tenant has taken oscillating stand. The averments made in the affidavit are self contradictory and are incoherent. The tenant has failed to prove the medical certificate of his illness. The trial Court has rightly noticed that the tenant has taken oscillating stand. The averments made in the affidavit are self contradictory and are incoherent. It has reached to the conclusion that the application under Order 9 Rule 13 was filed on incorrect pleas and I find no reason to take a different view of the matter, specially the findings have not been challenged before me. 16. There is no merit in the revision. The revision is dismissed with costs. 17. Time to vacate the disputed shops up to 31.12.2009 is granted subject to fulfillment of the following two conditions: (i)provided the applicant files an undertaking on affidavit within a period of one month before the trial Court that he will vacate the disputed accommodation and will hand over its peaceful vacant possession to the land lord on or before 31.12.2009 and (ii)the applicant shall also deposit the entire arrears of rent at the decreed rate along with the damages at the same rate for the period up to 31.12.2009 within a period of one month from today. 18. Any amount already deposited shall be given adjustment. In case of default of compliance of either of the conditions stipulated above, the time granted by this Court shall stand vacated and it shall be open to the respondent-land lord to put the decree in execution.