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2014 DIGILAW 2473 (ALL)

Bharat Yadav v. Ganpati Associates, Meerut Cantt

2014-08-13

SHASHI KANT GUPTA

body2014
JUDGMENT Hon’ble Shashi Kant Gupta, J.—The present civil revision has been filed against the judgment and order dated 9.3.2012 and 3.12.2011 passed by the Additional District Judge, Court No. 9, Meerut in Misc. Case No. 16 of 2009 arising out of SCC Suit No. 46 of 2008 (M/s. Ganpati Associates v. Bharat Yadav). 2. Plaintiff-respondent filed a SCC Suit No. 46 of 2008 against the defendant-revisionist for arrears of rent and ejectment. On 7.2.2009 the said SCC Suit was decreed ex parte. The defendant-revisionist filed an application under Order 9 Rule 13 read with Section 151 CPC for setting aside the ex parte decree alongwith an application for condonation of delay in filing the restoration application. The SCC Court allowed both the applications setting aside the ex parte judgment and order dated 7.2.2009 subject to the condition of deposit of monthly rent with 15% enhancement as provided in the alleged rent agreement dated 21.3.2003 and also directed to deposit the costs of Rs. 200/-. Against the said order, defendant-revisionist filed a modification application with a prayer that the defendant-revisionist may be allowed to deposit the rent at the rate of Rs. 1600/- per month and the conditions provided in the order dated 3.12.2011 for depositing the monthly rent with the enhancement of 15% in pursuance of the agreement dated 21.3.2003 may be deleted. The defendant-revisionist also filed his written statement rebutting the entire plaint case. By order dated 9.3.2012 the Court below partially modified the order dated 3.12.2011 to the extent that the landlord would be entitled to receive the rent in accordance with judgment that may be ultimately passed in the suit. 3. The defendant-revisionist, being aggrieved and dissatisfied with the orders dated 3.12.2011 and 9.3.2012, filed the present revision. 4. Heard learned counsel for the parties and perused the record. 5. This Court while issuing notice to the plaintiff-respondents, inter alia, passed the following order on 21.3.2012 in the present revisioin; “Under the circumstances the portion of order by which the applicant is required to deposit Rs. 8000/- per month till the next date of listing is stayed and the order is modified to the extent that the applicant will continue to pay the admitted amount of rent which is said to be Rs. 1600/- to the landlord.” 6. 8000/- per month till the next date of listing is stayed and the order is modified to the extent that the applicant will continue to pay the admitted amount of rent which is said to be Rs. 1600/- to the landlord.” 6. At the very outset, learned counsel for the plaintiff-respondent submitted that the revisionist while filing an application for restoration under Order XI Rule 13 of the CPC did not comply with the proviso to Section 17 of The Provincial Small Causes Courts Act, 1887 (in short “the Act”). For ready reference, provisions of Section 17 of the Provincial Small Cause Courts Act, 1887 are extracted below : “17 Application of the Code of Civil Procedure : (1) The procedure prescribed in the Code of Civil Procedure, 1908, shall save in so fas 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) Whereas 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.” 7. A perusal of the Proviso to Section 17 (1) of the Provincial Small Cause Courts Act, 1887 shows that if an application is made for setting aside an ex parte decree, then it is incumbent on the applicant, at the time of presenting his application, to 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 previous application made by him in this behalf, direct. Thus, the compliance of the Proviso to Section 17(1) of the Provincial Small Cause Courts Act, 1887 is mandatory. 9. Thus, the compliance of the Proviso to Section 17(1) of the Provincial Small Cause Courts Act, 1887 is mandatory. 9. Learned counsel for the plaintiff-respondent (landlord) further submitted that the mandatory provisions of Section 17 of the Act was not complied with at the time of filing an application for restoration under Order XI Rule 13 of the CPC. He further submitted that the deposit of the entire decretal amount was required to be deposited at the time of filing the said application. He further submitted that neither the entire decretal amount was deposited while filing the restoration application for setting aside the order nor the deposit was made in compliance of the the order dated 21.3.2012 passed by this Court. It was further submitted that since the proviso to Section 17 of the Act was not complied with by the defendant-revisionist, an application was filed by the plaintiff-respondent (landlord) for recalling the order dated 3.12.2011 whereby the ex parte decree was set aside. He further submitted that the the Court below, after hearing both the parties, held that Section 17 of the Act was not complied with by the defendant-revisionist as he had not deposited the entire decretal amount for getting the ex parte decree set aside. The Court below while passing the said order further held that subsequent orders passed by the Court below as well as by this Court were not also complied with, as such, the Court below by order dated 22.4.2013 recalled the order dated 3.12.2011 by which the ex parte decree was set aside. 10. Learned counsel for the defendant-revisionist has not disputed the aforesaid fact and has very fairly conceded that the Proviso to Section 17 of the Act was not complied with by the defendant-revisionist at the time of filing the restoration application under Order XI Rule 13 of the CPC. 11. From a perusal of the record, it clearly transpires that the petitioner did not deposit the entire decretal amount while filing an application for setting aside an ex parte order nor the revisionist deposited the requisite amount within ten days as provided in the order dated 3.12.2011. It is also evident from the record that the execution proceedings are pending against the defendant-revisionist since long. 12. It is also evident from the record that the execution proceedings are pending against the defendant-revisionist since long. 12. In the last, learned counsel for the defendant-revisionist, fervently urged that he may now be permitted to make compliance of the provisions of Section 17 of the Act. 13. In my view, such a prayer of the learned counsel for the petitioner is totally misconceived. This Court in catena of decisions has held that the provisions of Section 17 of the Act are mandatory in nature. The proviso to Section 17 of the Act clearly provides that it is incumbent on the applicant, at the time of presenting his application for setting aside an ex parte decree, to 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 previous application made by him in this behalf, direct. In the present case, neither the defendant-revisionist, at the time of presenting his application, deposited the entire amount due under the decree or gave such security for the performance of the decree. It appears that the presiding officer concerned who passed the order dated 3.12.2011 setting aside the ex parte decree was totally ignorant about the mandatory provisions of Section 17 of the Act and did not bother to examine as to whether the mandatory provisions of Section 17 of the Act were complied with or not by the revisionist. In the circumstances, later on the Court below was fully justified in setting aside/recalling the order dated 3.12.2011. 14. The position that thus emerges from the above discussion is that the judgment and decree dated 7.2.2009 is still operating against the defendant-revisionist and since the order dated 3.12.2011 passed by the Court below has already been set aside, the present revision challenging the impugned order dated 9.3.2012 and 3.12.2011 is rendered infructuous. The order dated 9.3.2012 is merely an off shoot of the earlier order dated 3.12.2011 and therefore once the order dated 3.12.2011 is set aside, the order dated 9.3.2012 loses its existence/force. It is also notable that the interim order dated 21.3.2012 passed by this Court was a time bound conditional order and was operative only till the next date of listing. It is also notable that the interim order dated 21.3.2012 passed by this Court was a time bound conditional order and was operative only till the next date of listing. The record clearly indicates that the said interim order dated 21.3.2012 was not extended and was not in existence when the order dated 22.4.2013 recalling the order dated 3.12.2011 was passed. 15. For the reasons stated above, the revision stands dismissed and the executing Court is now bound to execute the decree and proceed with the execution proceedings expeditiously. ————