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2009 DIGILAW 3847 (ALL)

RAJ KUMAR v. NEERAJ KUMAR SINGHAL

2009-12-22

RAJES KUMAR

body2009
JUDGMENT Hon’ble Rajes Kumar, J.—Present revision is directed against the order of Additional District Judge, Court No.10, Muzaffarnagar dated 17.09.2009, by which the application under Order IX, Rule 13, CPC filed by the revisionist for the recalling of the order dated 31.5.2005 has been rejected. Apart from the aforesaid application, other applications have also been rejected. 2. The brief facts of the case are that the revisionist was tenant of shop in dispute. The respondent/plaintiff filed SCC suit No. 22 of 2004 for the eviction and arrears of rent on the ground that the revisionist had committed default in payment of rent. Initially the notice was sent for the eviction, which has been refused and neither the rent has been paid nor the premises has been vacated, therefore, the suit has been filed. In the suit, the summons have been issued by the Court below. The revisionist refused to take the summons and, therefore, the service was treated as sufficient and the Court proceeded to decide the suit ex-parte. The suit was decided ex-parte vide order dated 31.5.2005. In pursuance thereof, the execution proceeding has been initiated and on 21.11.2006 the possession of the property in dispute has also been taken by the respondent. Thereafter, the revisionist filed an application under Order IX, Rule 13, CPC on 25.11.2006 for recalling of the order dated 31.5.2005. Three applications have also been filed namely, 61-C, 81-C and 83-C for the cross examination, opening of the envelope of papers, 19-C-1 and 19-C-2 to ascertains to whether contain the copy of the plaint or not Admittedly,, the decreed amount, Rs. 3,44,413/- has not been deposited nor any security has been furnished as required under Section 17 of the Provincial Small Causes Court Act, 1887 (hereafter referred to as the “Act”) for the maintainability of the application under Order IX, Rule 13, CPC. Before the trial Court the revisionist pleaded that the provisions of Section 17 of the Act was not applicable as the decree has been obtained by fraud. The trial Court has held that the summons were issued, which have been refused twice. The service was found sufficient and Court below proceeded to decide the suit ex-parte. In the execution proceedings also the notices were issued, which have been refused. The trial Court has held that the summons were issued, which have been refused twice. The service was found sufficient and Court below proceeded to decide the suit ex-parte. In the execution proceedings also the notices were issued, which have been refused. It has been further held that the suit has been decided in accordance to the prescribed procedure and, therefore, it can not be said that parties have committed any fraud. In the circumstances, it has been held that the mandatory requirement of Section 17 of the Act was required to be fulfilled for the maintainability of the application under Order IX, Rule 13, CPC and since the same has not been fulfilled the application was not maintainable. The other applications have also been rejected. 3. Heard Sri P.K. Jain, learned Senior Advocate assisted by Sri Amitabh Agrawal, learned counsel appearing on behalf of the revisionist and Sri K. Shailendra, learned counsel appearing on behalf of the respondent. 4. Learned counsel for the revisionist reiterated the submissions made before the Court below. He submitted that the ex-parte decreed was passed without any reason and, therefore, it was not valid decree and in support of which he relied upon the decision of this Court in the case of Commissioner of Income-tax v. Surendra Singh Pahwa and others, AIR 1995 All 259 , wherein it has been held that the ex-parte decree must satisfy description of judgment and unsupported by reasons is not a judgment. 5. He also relied upon the decision of the Apex Court in the case of Rameshwar Dayal v. Band (Dead) through his L.Rs. and others, 1993 ALJ 597, wherein Apex Court has had that the SCC judgment and decree without determining the issue is no judgment in the eye of law and not binding on the parties. He further submitted that where the Court was committed fraud in informing the counsel or the parties about the case, the proviso of Section 17(1) of the Act does not apply. He further submitted that where the Court was committed fraud in informing the counsel or the parties about the case, the proviso of Section 17(1) of the Act does not apply. In support of the contention he relied upon the decisions of this Court in the case of Balbir Singh Chauhan v. Vijai Kumar Agarwal, 1987(1) ARC, 336 and the decision of this Court in the ease of Munnoo and others v. Smt. Champakali and others, 1979 All LJ 534, wherein it has been held that where the absence of defendant was due to mistake of the Court, Section 17 of the Act does not apply. 6. Learned counsel for the respondent submitted that the summons have been sent by the Court in accordance to law twice and the receipt of the summons have been refused, therefore, the Court had no option except to proceed ex-parte. He further submitted that the present is not the case where the notices have not been properly issued and there is any fault on the part of the Court or any fraud has been committed by the respondent. He further submitted that the ex-parte order is well reasoned order and cannot be said to be invalid order in the eye of law. He submitted that in the case of Khilla Devi @ Manju Singh v. Vishwa Mohini, 2005 (1) RCJ 194, Jai Prakash v. Gulab Singh Rathor, 2002 (46) ALR 728 and in the case of Dinesh Kumar Dubey v. Ganga Shankar Tiwari, 2006 (85) ALR 855, this Court has held that the compliance of Section 17 of the Act is mandatory for the maintainability of the application under Order IX, Rule 13, CPC. 7. Having heard learned counsel for the parties, I have perused the impugned order and given my anxious consideration to the rival submissions. 8. Section 17 of the Act reads as follows : “17. 7. Having heard learned counsel for the parties, I have perused the impugned order and given my anxious consideration to the rival submissions. 8. Section 17 of the Act reads as follows : “17. Application of the Code of Civil Procedure.—(1) The procedure prescribed in the Code or Civil Procedure, 1908, shall, save in so far as it 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 lime 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. 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.” 9. The aforesaid Section 17 of the Act came up for consideration before the Apex Court in the case of Kedarnath v. Mohan Lal Kesarwani and others, AIR 2002 SC 582 . The Apex Court held as follows : “A bare reading of Section 17(1) Proviso shows that the legislature have chosen to couch the language of the proviso in a mandatory form and there is 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 was to 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 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 dispensation may be filed. 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.” 10. This Court in the case of Khilla Devi @ Manju Singh v. Vishwa Mohini (supra), Jai Prakash v. Gulab Singh Rathor (supra) and in the case of Dinesh Kumar Dubey v. Ganga Shankar Tiwari (supra) has held that Section 17 of the Act is mandatory. Admittedly in the present case, Section 17 of the Act has not been complied with neither the amount has been deposited nor any security has been furnished nor time has been sought for furnishing the security. The trial Court has arrived to the conclusion that on the facts and the circumstances, summons were issued in accordance to the procedure prescribed, which were refused to receive twice and, therefore, the Court had no option except to proceed ex-parte. There was no fault on the part of the Court in proceeding ex-parte. Further no case of fraud has been made out by the revisionist. In these circumstances, the Court below has rightly rejected the application under Order IX, Rule 13, CPC for non-compliance of Section 17 of the Act. 11. In the result, the revision is devoid of any merit and is accordingly, dismissed. ————