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2013 DIGILAW 3083 (ALL)

PADMA AGARWAL v. DEEPAK KUMAR YADAV

2013-12-18

RAN VIJAI SINGH

body2013
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri Tarun Tiwari, learned counsel for the petitioners and Sri Deo Dayal alongwith Sri Amul Ratan Srivastava, learned counsel for the respondent Nos. 2 and 3. 2. By means of this writ petition, the petitioners have prayed for issuing a writ of certiorari quashing the orders dated 2.3.2013 and order dated 11.11.2013 passed by Additional District Judge/Special Judge S.C./S.T. Act, Varanasi in Misc. Case No. 04 of 2013 (Smt. Padma Agarwal and others v. Deepak Kumar Yadav and others). 3. vide order dated 2.3.2013, the learned Judge has stayed the eviction of the petitoner subject to deposit of entire decreetal amount and payment of Rs. 900/- per month damages for use and occupation of the accommodation in dispute during the pendency of the revision.Whereas vide order dated 11.11.2013, the learned Additional District Judge has rejected the petitioners’ application to accept the security in lieu of payment of decreetal amount. 4. It appears the respondents have filed Suit No. 74 of 2010 (Smt. Praimbada Jiaitly v. Smt. Padma Agarwal and others) for eviction and payment of arrears of rent. The said suit was decreed ex parte on 19.11.2012. For setting aside the aforesaid decree, the petitioners herein have filed an application under Order 9, Rule 13 read with Section 151 of Code of Civil Procedure. Alongwith the application, the petitioners have also filed an application for staying the eviction. The learned Court below has considered the petitioners’ application and passed an order, staying the eviction of the petitioners on 2.3.2013 subject to payment of entire decreetal amount and also payment of Rs. 900/- per month damages. 5. The petitioners, instead of complying with the order by depositing the entire decreetal amount, have moved an application that they are not in a position to deposit the entire amount in cash at a time, therefore the security furnished by them may be accepted. The Court below has rejected the petitioner’s application for accepting the security vide order dated 11.11.2013 holding that the order dated 2.3.2013 was passed under the discretionary power of erstwhile Additional District Judge, therefore it is not worth to be interfered with and rejected the application. 6. For appreciating the controversy it would be useful to go through the provisions contained under Section 17 of the Provincial Small Causes Court Act, 1887 (hereinafter referred to as ‘the Act’) which run as under : 17. 6. For appreciating the controversy it would be useful to go through the provisions contained under Section 17 of the Provincial Small Causes Court Act, 1887 (hereinafter referred to as ‘the Act’) which run as under : 17. Application of the Code of Civil Procedure.—(1) [29][The procedure prescribed in the Code of Civil Procedure, 1908[30], 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 judgement 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 [31][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 [32][145] of the Code of Civil Procedure, [33][1908]. 7. From the bare reading of the proviso to Section 17, it would transpire that at the time of filing of an application for setting aside the ex parte decree, the applicant is required either to deposit the entire decretal amount or security depending upon the discretion of the Court. The learned Judge while extending the interim protection to the petitioner by staying their eviction has exercised discretion vested in him by directing the petitioners to deposit the entire decreetal amount. 8. The petitioners have filed an application stating that their financial position is not such that they can deposit the entire decreetal amount at a time in cash particularly in the circumstances when the case of the applicant was that the entire rent has already been paid. 9. Learned counsel for the respondents has submitted that the deposit of entire decreetal amount or furnishing security is totally dependent upon the discretion of the Court below and once discretion has been exercised this way or that way, it is not open to be interfered with. 10. 9. Learned counsel for the respondents has submitted that the deposit of entire decreetal amount or furnishing security is totally dependent upon the discretion of the Court below and once discretion has been exercised this way or that way, it is not open to be interfered with. 10. Sri Srivastava may be right in his submissions but where the authority or the Court is empowered to pass an order under discretionary power, the discretion has to be exercised in a judicious way. An arbitrary exercise of the power will not be covered in the garb of the discretion. Undoubtedly it was in the domain of the learned Judge either to direct the petitioner to deposit the entire decreetal amount or to furnish security but the intention of the legislature putting the both things in the proviso makes it clear that either of the two can be adopted and once the choice is left on the discretion of the Court either to accept this or that. Something more was required while considering the subsequent application.The Court had to apply its mind to the facts and circumstances of the case, where the petitioners came up with the prayer to the Court to accept the security to satisfy decreetal amount as their financial position is not such that may warrant to deposit the entire amount in cash at a time. It was a juncture where the Court ought to have applied its mind whether the petitioners have approached the Court with clean hands and they are really helpless and unable to comply with the order or whether their financial position is sound and they can deposit entire decreetal at a time.It was incumbent upon the Court, exercising the power staying the eviction, to visualize the status of the petitioners approaching the Court. From reading of the entire judgment dated 11.11.2013, it transpires that the learned Judge has nowhere observed that the petitioners’ statement is not worth reliable and their financial status is sound and they could deposit the entire decreetal amount at a time. 11. The Apex Court in Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, JT 1987 (1) SC 537 : 1987 (2) SCR 387 , has held that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 11. The Apex Court in Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, JT 1987 (1) SC 537 : 1987 (2) SCR 387 , has held that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 12. In State of U.P. v. Mohd. Nooh, AIR 1958 SC 86 , the Apex Court has observed that justice should be administered in our Courts in common sense, liberal way and be broad based on human values rather than on narrow and restricted considerations hedged round with hair splitting technicalities. 13. In Maria Margarida Sequeria Fernandes and others v. Erasmo Jack de Sequeria (Dead) through L.Rs., 2012 (1) CCC 344 (SC) : 2012 (3) SCALE 550 , the Apex Court has observed that truth alone has to be foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty. 14. In view of foregoing discussions, I am of the opinion that the Court below have failed to exercise the discretion vested in it. 15. However, considering the petitioner’s submission which has not been opposed by the otherside that in case, by now the petitioners are permitted to deposit the entire decreetal amount alongwith up to date damages, they may now comply the order passed by the Court below. It is provided that in case the petitioners deposit entire decreetal amount alongwith up to date damages by 20th January, 2014, the eviction of the petitioners from the accommodation in dispute shall remain stayed. In case, the petitioners fail to deposit the amount as directed by this Court, interim protection extended today shall stand automatically vacated. In the event of deposit of entire decreetal amount alongwith damages, the Court below is directed to decide the petitioners’ application for setting aside the ex parte decree expeditiously without granting any unnecessary adjournments to the learned counsel for the parties. 16. It may be observed that while considering the application of the landlord seeking withdrawal of the decreetal amount, the Court below shall protect the interest of the petitioners also. 17. With the aforesaid observation, this writ petition is disposed of.