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2013 DIGILAW 423 (UTT)

Iqbal Ahmed v. Sudesh Kumari

2013-07-02

V.K.BIST

body2013
ORDER This revision has been filed by the revisionist/tenant against the order dated 27.03.2012 passed by 2nd F.T.C./Addl. District and Sessions Judge, Dehradun in Misc. Case No. 1 of 2011 whereby the restoration application moved by the revisionist seeking setting-aside the ex parte judgment and order dated 21.07.2011 passed in S.C.C. Suit No. 3 of 2009 was rejected. 2. Precisely, the facts of the case, leading to filing of instant revision, are that on 15.01.2009, S.C.C. Suit No. 3 of 2009 titled as Smt. Sudesh Kumari v. Iqbal Ahmad was filed by the landlord/ respondent in the Court of Small Causes District Judge, Dehradun claiming thereby the arrears of rent, mesne profit, possession, arrears of electricity charges, inter alia, with the averments that defendant was a month to month tenant in one shop forming part of property bearing No. 127/1, Nai Basti, Chakhuwala, Indira Colony, Dehradun on behalf of the plaintiff on a rent of `670/- per month besides `100/- per month towards electricity charges. It was stated that provisions of U.P. Act No. 13 of 1972 are not applicable to the said property. Tenancy of the defendant was terminated vide notice dated 10.12.2008 sent by registered A.D. Post, UPC and Courier, which was duly served upon the defendant on 11.12.2008. It was stated that the defendant has committed default in making payment of rent and electricity charges, inasmuch as, he has not paid the rent and electricity charges w.e.f. 01.02.2005. By the notice dated 10.12.2008, the defendant was asked to pay the arrears of rent, electricity charges and interest @ 9% per annum on the amount due and `2,500/- as the cost of the notice. Besides, the defendant was called upon to vacate and deliver the possession thereof to the plaintiff and on failure on the part of defendant, he would be liable to pay mesne profits @ `100/- per day. It was also stated that the defendant has illegally obtained independent electric connection. It was stated that the rent and electricity charges for the period prior to 11.01.2006 have become barred by time and the plaintiff, without giving up her rights, claims arrears of rent and electricity charges w.e.f. 12.01.2006. Since the defendant failed to comply with the notice, therefore the suit was instituted. It was stated that the rent and electricity charges for the period prior to 11.01.2006 have become barred by time and the plaintiff, without giving up her rights, claims arrears of rent and electricity charges w.e.f. 12.01.2006. Since the defendant failed to comply with the notice, therefore the suit was instituted. Refuting the contents of the plaint, the defendant/revisionist filed written statement with the assertion that provisions of U.P. Act No. 13 of 1972 are applicable to the suit property, as the suit property was constructed 30 years before; the plaintiff is not the owner of the suit property; no right arise to the plaintiff to terminate the tenancy of the defendant and to evict him; there is no need to reply the notice, as proclaimed by the plaintiff; the plaintiff has disconnected the electricity connection and under the orders of this High Court, temporary electricity connection was granted to the defendant, therefore the plaintiff cannot claim electricity charges, as she herself had disconnected the electricity connection. It was also stated that the plaintiff is not the owner of the suit property, as she sold the said property vide registered sale deed dated 03.11.2006, therefore the plaintiff cannot claim for the rent from the date of sale i.e. 03.11.2006. It is also stated that the defendant had paid the rent to the plaintiff regarding the suit property, but she refused to issue any receipt thereof. It is stated that the plaintiff is not entitled to the cost of notice, mesne profit and the interest, as she is not the owner of the suit property. It is further stated that owner of the suit property-Pradeep Kumar had served the defendant with notice dated 09.03.2009 demanding him to pay the rent of the premises in occupation and has annexed copy of the sale deed along with the said notice and on receipt of said notice, the defendant paid the rent of the shop from November, 2008 till October, 2015 i.e. for the period of 7 years amounting to `56,280/- to which the owner of the shop Mr. Pradeep Kumar issued receipt, thus there is no arrears of rent standing accrued against the defendant. It is stated that the suit is bad in the eyes of law and is liable to be dismissed. It is further asserted that the purchaser of the suit property Mr. Pradeep Kumar issued receipt, thus there is no arrears of rent standing accrued against the defendant. It is stated that the suit is bad in the eyes of law and is liable to be dismissed. It is further asserted that the purchaser of the suit property Mr. Pradeep Kumar filed an impleadment application seeking his impleadment on the basis of sale deed dated 03.11.2006, which was rejected on the ground that said sale deed was declared null and void in O.S. No. 477 of 2009 on 21.01.2010 on the basis of compromise. In the meantime, due to absence of defendant/tenant, the transferee Court of 2nd F.T.C./Addl. District and Sessions Judge, Dehradun proceeded ex parte against the defendant/tenant on 20.07.2010 without issuing any notice to the defendant/tenant and proceeded with the suit, which had culminated in the passing of ex parte judgment and order dated 21.07.2011. The revisionist, on coming to know about the ex parte judgment and decree, filed an application for setting-aside the same and for deciding the suit on merit. The plaintiff filed an application (7-C) for rejection of said application on the ground of non-compliance of Section 17 of Provincial Small Cause Court Act. Thereafter, the revisionist filed rejoinder and showed his readiness and willingness to furnish security as per the requirement of Section 17 of Provincial Small Cause Court Act. Small Cause Court allowed 7-C application of the plaintiff and rejected the application of revisionist. Hence this revision. 3. I have heard Mr. Siddhartha Singh, Advocate for the revisionist, Mr. Piyush Garg, Advocate for the respondent and perused the record. 4. Learned counsel for the revisionist submitted that during the pendency, the S.C.C. suit was transferred to the Court of A.D.J./F.T.C., Dehradun on 29.04.2011 and at that relevant time, the transferee Court had not issued any notice to the defendant/tenant, as required under Rule 89A of General Rule (Civil) but proceeded with the suit, which has culminated in the passing of ex parte judgment and order dated 21.07.2011 and on coming to know of ex parte judgment and decree, the defendant inspected the file of trial Court on 22.09.2011 and immediately filed restoration application on 24.10.2011 for setting-aside the ex parte judgment and decree passed in S.C.C. suit, inter alia, on the ground that defendant had failed to appear due to his ill health and has paid the advance rent to Mr. Pradeep Kumar, the purchaser of the property on 15.03.2009. He submitted that the plaintiff raised objection about the maintainability of application for setting-aside ex parte judgment and decree on the ground of non-compliance of Section 17 of Provincial Small Cause Court Act and further opposed the application on the ground of delay, however the trial Court rejected the application for setting-aside the judgment and decree vide order dated 27.03.2012, merely on the ground that no compliance has been made, as required under Section 17 of Provincial Small Cause Court Act. Learned counsel for the revisionist contended that the order impugned has been passed ignoring the fact that the defendant had paid the advance rent of 7 years w.e.f. November, 6, 2008 to October, 2015 amounting to ` 56,280/- to Mr. Pradeep Kumar, on the notice issued by him, consequently, the defendant was not in arrears of rent, hence there was no occasion to comply with the requirement of Section 17 of Provincial Small Cause Court Act. He contended that the J.S.C.C. had overlooked the mandate and requirement of Rule 89A of General Rule (Civil), which provide that even if the suit was proceeding ex parte, the transferee Court is bound to issue notice of transfer to the defendant prior to proceeding further in the matter. In this context, learned counsel for the revisionist relied on the judgment of Hari Shankar v. Ramji Lal, reported in 2012 (1) ARC 546 and Sikandar v. Akhalak, reported in 2008 (2) ARC 231 : (2008 (6) ALJ (DOC) 72 (All). In these judgments, the Allahabad High Court held that in such cases where requirement of Rule 89 A of General Rule (Civil) is not complied, provisions of Order IX, Rule 13, C.P.C. were not applicable and party was not required to comply with the provisions of Section 17 of Provincial Small Cause Court Act. He submitted that prayer for condonation of delay can even be made orally and it is not a requirement in law to file a specific application therefor. He contended that proviso of Section 17 of Provincial Small Cause Court Act reveals that the amount should be due towards the party applying, while in the case in hand the defendant/tenant had paid seven years advance rent to the owner/purchaser of the property on 15.03.2009. 5. On the other hand, Mr. He contended that proviso of Section 17 of Provincial Small Cause Court Act reveals that the amount should be due towards the party applying, while in the case in hand the defendant/tenant had paid seven years advance rent to the owner/purchaser of the property on 15.03.2009. 5. On the other hand, Mr. Piyush Garg, Advocate for the plaintiff/respondent contended that there is no perversity in the order passed by the Court below and the same has been passed following the dictum of the Honble Apex Court in the case of Kedar Nath v. Mohan Lal Kesarwani reported in 2002 (2) SCC 16 : ( AIR 2002 SC 582 ). He contended that after transfer of any case to other Court established at same destination, the transferee Court is not obliged to send notice about the transfer of case. He referred the judgment of this Court, reported in (2011) 1 UAD 210 and contended that after having had intimated by the landlord about the eviction proceedings and the date fixed therein, the fault clearly lay upon the tenant in not contesting the proceedings, as he had knowledge of the proceedings and deliberately chose not to appear, hence the Court below rightly rejected the application of tenant under Order IX, Rule 13 of C.P.C. He submitted that on eight successive dates, the defendant did not appear before the trial Court, which envisaged the conduct of the revisionist/tenant, inasmuch as, Rule 89A of General Rules (Civil) is not mandatory to be complied with. He further submitted that the revisionist has admitted his tenancy month to month in paragraph-1 of his written statement with further admission in paragraph No. 6 of the written statement that the plaintiff has disconnected the electric connection, which envisaged that the act of disconnection of electricity cannot be done without having had ownership of that particular premises. Moreover, in page-58, contained in the file of instant revision which is the affidavit of the revisionist, the revisionist has admitted, on oath, that the deponent is the tenant in part of property bearing No. 127/1, Nai Basti Chukhuwala, Indira Colony, Dehradun consisting of one shop situated on ground floor and the O.P. is the landlord of the same. 6. Moreover, in page-58, contained in the file of instant revision which is the affidavit of the revisionist, the revisionist has admitted, on oath, that the deponent is the tenant in part of property bearing No. 127/1, Nai Basti Chukhuwala, Indira Colony, Dehradun consisting of one shop situated on ground floor and the O.P. is the landlord of the same. 6. The only question which is to be determined by this Court is whether the Judge, Small Cause Court erred in exercising its jurisdiction illegally with material irregularity which resulted in passing of order impugned. The Judge, Small Cause Court rejected the application of the revisionist on the ground that he had not complied the proviso of Section 17 of Small Cause Courts Act. Section 17 of Small Cause Court Act is being reproduced below:- 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 sofaras 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 {Subs.by Act of 1935, S.2, for security to the satisfaction of the Court for the performance of the decree or compliance with the judgment, as the Court may direct} [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 {Subs.by Act 1 of 1926, S.2, for 253} [145] of the Code of Civil Procedure (5 of 1908), {Ins.by S.2, ibid} [1908]. 7. From bare reading of Section 17 of the Act, it is clear that a party seeking to set-aside ex parte decree is required to deposit the amount due from him under the decree or in pursuance of the judgment or gives security for performance of decree. 7. From bare reading of Section 17 of the Act, it is clear that a party seeking to set-aside ex parte decree is required to deposit the amount due from him under the decree or in pursuance of the judgment or gives security for performance of decree. In the case in hand, the revisionist, in paragraph 1 of the affidavit filed in support of his application for setting-aside ex parte decree had admitted that he is the tenant of part of property bearing No. 127/1, Nai Basti Chukhuwala, Indira Colony, Dehradun consisting of one shop situated on ground floor and the plaintiff is the landlord of the same. He, after admitting the respondent as his landlord, was not justified in making payment of advance rent from November, 2008 to October, 2015 to Mr. Pradeep Kumar. It is not disputed that before filing of application for setting-aside ex parte decree, the proviso of Section 17 of the Act was not complied. Section 17 is very clear that person seeking to set-aside ex parte decree is required to deposit the amount to him under the decree or give security for performance of decree. Such deposit is required to be made at the time of presenting the application. The revisionist did not deposit such amount before filing of application. He showed his willingness and readiness to furnish security as per the requirement of Section 17 of the Provincial Small Cause Court Act, only when 7-C application for rejection of revisionists application for non-compliance of provision of Section 17 of the Act was filed. Thus, he failed to comply the provision of Section 17 of the Act. With due respect, I do not agree with the view taken by the Allahabad High Court in the case reported in ARC 1987 (1) 336 : (1987 All LJ 612). The Honble Supreme Court, in the matter of Kedar Nath v. Mohan Lal Kesarwani (2002) 2 SCC 16 : ( AIR 2002 SC 582 ) has observed that a bare reading of the provision shows that the Legislature has 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. Thus, the proviso to section 17 of the Provincial Small Cause Court Act is mandatory. 8. In view of above discussion, the revision fails and is dismissed. Thus, the proviso to section 17 of the Provincial Small Cause Court Act is mandatory. 8. In view of above discussion, the revision fails and is dismissed. No order as to costs. Revision dismissed.