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2012 DIGILAW 274 (ALL)

Tazuddin v. Anwar @ Raja

2012-01-31

DILIP GUPTA

body2012
Dilip Gupta, J.;- This petition seeks the quashing of the judgment and order dated 12th January, 2012 by which the Revision filed by the petitioner for setting aside the order dated 23rd November, 2011 passed by the Judge, Court of Small Causes was dismissed. The Judge, Court of Small Causes by the order dated 23rd November, 2011 rejected the application filed by the petitioner under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree dated 30th May, 2009 passed in SCC Suit no.38 of 2008. It is seen from the records of the writ petition that the application for setting aside the ex-parte decree dated 30th May, 2009 was filed by the petitioner on 11th October, 2010 and subsequently on 11th May, 2011 an application was moved by the judgment debtor that the amount deposited by the petitioner under Section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the 1972 Act') may be considered as sufficient compliance of the deposit to be made under the proviso to section 17(1) of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as the 1887 Act') and in the alternative, the petitioner may be permitted to give security for the performances of the decree. The application filed by the petitioner for setting aside the ex-parte decree was rejected by the Judge, Court of Small Causes by the judgment and order dated 23rd November, 2011 for the reason that the condition stipulated in the proviso to section 17(1) of the 1887 Act for deposit of the amount due under the decree at the time of presentation of the application had not been complied by the judgment debtor. The Revision filed by the petitioner against this order was dismissed. It is the submission of the learned counsel for the petitioner that the petitioner had deposited more than the decretal amount under Section 30 of the 1972 Act and it is for this purpose that he had moved an application on 11th May, 2011 before the Court with the alternative prayer that the petitioner was ready to furnish security for this amount. Sri M.A. Qadeer, learned Senior Counsel appearing for the respondent has, however, submitted that the petitioner has not complied with the conditions stipulated in the proviso to section 17(1) of the 1887 Act and, therefore, the Judge, Court of Small Causes committed no illegality in rejecting the application. I have considered the submissions advanced by the learned counsel for the parties. It is not possible to accept the contention of the learned counsel for the petitioner. Section 17 of the 1887 Act which deals with the applicability of Code of Civil Procedure for the procedure to be followed by Small Cause Courts and the conditions under which ex-parte decree can be set aside is as follows:- "17. Application of the Code of Civil Procedure.- (1) The procedure prescribed in the Code of Civil Procedure, 1908 (5 of 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 realised in manner provided by section 145 of the Code of Civil Procedure, (1908) (5 of 1908)" It is, therefore, clear that the applicant who moves an application for setting aside the ex parte decree has to, at the time of presenting the application, either deposit in the Court the amount due from him under the decree or give such security for the performance of the decree as the Court may, on a previous application made by him in this behalf had directed. The provisions of Section 17 of the Act have been elaborately analysed by the Supreme Court in Kedar Nath Vs. Mohan Lal Kesarwani, AIR 2002 SC 582 . The provisions of Section 17 of the Act have been elaborately analysed by the Supreme Court in Kedar Nath Vs. Mohan Lal Kesarwani, AIR 2002 SC 582 . In the said case, the suit had been decreed ex parte on 9.8.1996. On 26.2.1998 the tenants moved an application under Order 9 Rule 13 CPC for setting aside the ex parte decree but neither the amount due under the decree was deposited and nor an application was filed seeking direction of the Court to furnish security for the performance of the decree in lieu of depositing the decretal amount. It is only on 15.10.1998 that the tenants filed an application with a prayer that they may be permitted to furnish security for payment of the decretal amount. The learned Judge Small Cause Courts rejected the application as the application filed under Order 9 Rule 13 CPC did not comply with the condition contained in Section 17 of the Act. The Revisional Court, however, condoned the delay in moving the application dated 15.10.1998 and directed the Trial Court to accept the security and hear and decide the application under Order 9 Rule 13 CPC on merits. The High Court dismissed the writ petition filed by the landlord. The landlord preferred a Special Leave Petition in the Supreme Court which was allowed and the order passed by the Trial Court was restored. The Supreme Court observed :- "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 cause 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 pursuant 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 upto 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. In the case at hand, the application for setting aside ex-parte decree was not accompanied by deposit in the Court the amount due and payable by the applicant under the decree. The applicant also did not move any application for dispensing with deposit and seeking leave of the Court for furnishing such security for the performance of the decree as the Court may have directed. The application for setting aside the decree was therefore incompetent. It could not have been entertained and allowed." (emphasis supplied) It is, therefore, clear from the aforesaid decision that the language of the proviso contained in Section 17 of the 1887 Act is mandatory in nature and an application for setting aside the ex parte decree must be accompanied by a deposit in the Court of the amount due under the decree and that this deposit can be dispensed with by the Court in its discretion on a previous application by the applicant seeking direction of the Court for leave to furnish security. This application can be filed at any time up to the time of the presentation of the application for setting aside the ex parte decree. This application can be filed at any time up to the time of the presentation of the application for setting aside the ex parte decree. If the application under Order 9 Rule 13 CPC is not accompanied with a deposit and if an application has also not been moved for furnishing security in lieu of the deposit up to the time of the presentation of the application under Order 9 Rule 13 CPC, then the application under Order 9 Rule 13 CPC is incompetent and cannot be entertained and allowed. It is seen from the record that at the time when the petitioner moved the application on 11th October, 2010 for setting aside the ex-parte decree dated 30th May, 2009, he did not deposit the amount due from him under the decree and nor did he move any application for giving security for the performance of the decree. It is only on 11th May, 2011 that the petitioner moved an application that the amount deposited by him under Section 30 of the 1972 Act may be adjusted towards the decretal amount and in the alternative, the petitioner may be permitted to furnish security. As noticed hereinabove, it was absolutely essential for the petitioner to have either deposited in the Court the amount due from him under the decree or to have moved a previous application for furnishing security but that was not done. The impugned order, therefore, does not call for any interference under Article 226 of the Constitution of India and the petition is liable to be dismissed. Learned counsel for the petitioner, however, submitted that four months' time may be given to the tenant to vacate the shop and for this period, the tenant is ready to pay damages at the rate of Rs.1000/- per month. Learned counsel for the landlord has stated that the landlord will have no objection to the aforesaid time being granted to the tenant. The tenant is, accordingly, granted time upto 30th May, 2012 to handover the peaceful possession of the shop to the landlord subject to the tenant giving an undertaking within two weeks from today before the Judge, Court of Small Causes to the following effect :- 1. That the tenant shall handover peaceful possession of the shop to the landlord on or before the 30th May, 2012. 2. That the tenant shall handover peaceful possession of the shop to the landlord on or before the 30th May, 2012. 2. That the tenant shall pay damages at the rate of Rs.1000/- per month up to the date he hand-over the possession of the shop to the landlord. 3. That the tenant shall not induct any other person in the shop. It is made clear that in the event the tenant fails to give the undertaking within the aforesaid period or fail to comply with any of the terms of the undertaking, it will be open to the landlord to get the decree executed. The writ petition is, accordingly, dismissed with the aforesaid observations.