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Uttarakhand High Court · body

2014 DIGILAW 605 (UTT)

Mausam Ali v. Civil Judge (J. D. ), Dehradun

2014-12-23

SUDHANSHU DHULIA

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JUDGMENT Sudhanshu Dhulia, J. 1. Mr. S.K. Jain, Senior Advocate assisted by Mr. B.S. Thind and Mr. Siddhartha Jain, Advocates, for the petitioner. 2. Mr. Pawan Mishra, Advocate, present for the respondent nos. 2 & 3. 3. This is the tenant’s writ petition, challenging the order dated 11.10.2004 and order dated 12.01.2005, passed by the Civil Judge (Junior Division), Dehradun. 4. A Small Cause Court suit was filed being SCC Suit No. 15 of 1999 by the landlord/respondent nos. 2 & 3 against the petitioner/defendant for arrears of rent and ejectment on the ground of default in the payment of rent. The suit was decreed ex-parte on 01.07.2000. Thereafter, the matter went in execution. At this stage an application was moved under Order 9 Rule 13 of the Code of Civil Procedure by the tenant/defendant on 30.04.2004. Under Section 17 of the Provincial Small Cause Courts Act, 1887, such an application is only maintainable when at the time of presentation of this application the applicant deposits in the Court the entire decreetal amount due from him under the decree or give such security for the performance of the decree or compliance with the judgement as the Court may, on a previous occasion had directed. 5. The case of the petitioner before this Court is that on the date when such an application was moved Order 9 Rule 13 of the Code of Civil Procedure i.e. 30.04.2004, he had deposited the entire decreetal amount by way of a tender, however, for some reasons, tender could not be passed. Thereafter, the defendant/tenant moved an application on 28.05.2004 stating that he had moved an application under Section 17 of the Provincial Small Cause Courts but since he is a poor person therefore inspite of all his efforts he could not arrange the funds and could not deposit the amount. Now after great efforts on his part, he has been able to arrange money from his relatives and he is now depositing the amount. He further prayed that the delay caused in depositing the amount be condoned. 6. The court below, however, came to the conclusion that the provisions contained in Section 17 of the Provincial Small Cause Courts are mandatory in nature. He further prayed that the delay caused in depositing the amount be condoned. 6. The court below, however, came to the conclusion that the provisions contained in Section 17 of the Provincial Small Cause Courts are mandatory in nature. The amount was not deposited by the defendant at the time of moving the application under Order 9 Rule 13 of the Code of Civil Procedure, and the application was rejected by the court vide order dated 11.10.2004. Against that order dated 11.10.2004, the defendant/tenant filed a review application which was also rejected on 12.01.2005. 7. Aggrieved, the petitioner/defendant has filed the present writ petition. 8. Heard the learned counsel for the petitioner, Mr. S.K. Jain, Senior Advocate and Mr. Pawan Mishra, learned counsel for the respondent/plaintiff and perused the record. 9. The case of the petitioner is that the application which was moved by the defendant/tenant on 28.05.2004, which is on record is actually a wholly misconceived application. The petitioner is an illiterate person and the application, which was moved by his lawyer, was not liable to be moved at all where inadvertently he had stated in his application filed under Section 17 of the Provincial Small Cause Courts Act on 30.04.2004 that he could not deposit the decreetal amount whereas the fact is that as the entire amount was not deposited by way of tender on 30.04.2004, though, tender was passed only on 28.05.2004 which is not petitioner’s fault. Learned counsel for the petitioner submits that vide powers are given to the Judge, Small Cause Court and he should have condoned the delay but this not have been done. 10. The learned counsel for the respondents Mr. Pawan Mishra, on the other hand, points out to the application of the petitioner, which is enclosed at page no. 36, it has been categorically stated that the suit was decreed exparte on 1st July, 2000 and the application for recall under Order 9 Rule 13 of the Code of Civil Procedure was moved on 30.07.2004 i.e. after a period of four years. This was accompanied by the application under Section 17 of the Provincial Small Cause Courts Act but the decreetal amount was not deposited on that date. This was accompanied by the application under Section 17 of the Provincial Small Cause Courts Act but the decreetal amount was not deposited on that date. This is further evident from the record that the next application was moved by the petitioner on 28.05.2004, wherein paragraph 2, 3 & 4, he clearly states that he did not deposit the amount. There is no mention of any tender etc. He further state that he has now deposited the entire amount on 28.05.2004. 11. There is hence a clear admission on part of the defendant/petitioner that his application under Section 17 of the Provincial Small Cause Courts Act did not accompany the entire decreetal amount. Section 17 of the Provincial Small Cause Courts Act, 1887 reads as under:- “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 realized in manner provided by section [145] of the Code of Civil Procedure, [1908] (5 of 1908). 12. In view of the Hon’ble Apex Court’s direction in case of Kedarnath vs. Mohan Lal Keswari and Others, (2002) 2 SCC 16 , it has been held that the compliance of the provisions of Section 17 of the Provincial Small Cause Courts Act is mandatory. 13. In view thereof, no interference is called for in the order of the court below. The writ petition is hereby dismissed. No order as to costs.