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2015 DIGILAW 2152 (ALL)

Ronald Angelo @ Raju v. Arshad Jamal Warsi

2015-07-28

SUNEET KUMAR

body2015
JUDGMENT Suneet Kumar, J. The respondent/landlord filed a suit for arrears of rent and eviction before the Small Causes Court, Gorakhpur against the petitioner/tenant being Suit No.58 of 2008 (Arsad Jamal Warasi vs. Ronald Angelo). The suit was decreed ex parte by judgment and order dated 1 August 2012. The petitioner moved an application under Order 9 Rule 13 of Code of Civil Procedure on the ground that the petitioner did not receive any summon nor had any knowledge of substituted service of the notice. It was further contended that the petitioner had deposited the rent upto December 2012 in Misc. Case No. 21/1991 under Section 30 of Act No.XIII of 1972. The respondent'/landlord filed objection to the application under Order 9 Rule 13 stating that there has been no compliance of Section 17 of the Provincial Small Causes Court Act, 18871, hence, the application is liable to be rejected. The trial court rejected the application under Order 9 Rule 13 by the judgment and order dated 30 January 2014. Aggrieved, the petitioner preferred a revision being S.C.C. Revision No.2 of 2014 which was dismissed by the District Judge, Gorakhpur on 30 May 2014. Aggrieved by the aforementioned orders, the petitioner has approached this Court in writ jurisdiction. 2. At the very outset, learned counsel for the petitioner has very fairly conceded that in view of the judgement rendered by the Supreme Court in Radhey Shyam and another vs. Chhabi Nath and others, 2015(3) ADJ 210 : 2015 (1) ARC 657, no writ would lie against a judicial order arising out of civil proceedings. Learned counsel for the petitioner would contend that the issue raised in the petition goes to the root of the lis, therefore, the petition be heard under Article 227 of the Constitution, further, the learned counsel for the petitioner would confine his argument within the parameter of the said Article. I, accordingly, proceed to examine the submission of learned counsel for the petitioner under Article 227 of the Constitution. 3. Submission of the learned counsel for the petitioner is that it was clearly stated in para-6 of the application filed under Order 9 Rule 13 that the petitioner has deposited the entire rent due till December 2012 in Misc. Case No.21/1991. 3. Submission of the learned counsel for the petitioner is that it was clearly stated in para-6 of the application filed under Order 9 Rule 13 that the petitioner has deposited the entire rent due till December 2012 in Misc. Case No.21/1991. This fact was not verified by the court below while dismissing the application of the petitioner for non compliance of the terms of Section 17 of the Act, 1887. It is, therefore, contended that the courts below have erred in not enquiring as to whether the decretal amount deposited by the petitioner as stated in the application under 9 Rule 13 would satisfy the decretal amount. Merely, because the petitioner had subsequently moved an application under Section 17 to deposit the decretal amount would not mean that the petitioner was in default. 4. In rebuttal, Sri N.K. Chaturvedi, learned counsel for the respondent/landlord would submit that there is no illegality or infirmity in the impugned orders. The orders are lawful and legal. 5. It is admitted that the petitioner was depositing the rental of the premises @ Rs.17.50 per month under Section 30 of Act No.XIII of 1972 but at the same time, it is admitted that along with the application filed under Order 9 Rule 13, the petitioner did not tender the decretal amount as reflected in the decree. The amount was tendered almost five months after moving the application under Order 9 Rule 13 on 18 August 2012. The plea that the Court should have enquired as to whether the amount already deposited by the petitioner in the proceedings under Section 30 of the Act No. XIII of 1972 satisfies the decretal amount cannot be accepted for the reason that in the event of the petitioner depositing the entire sum, there was no occasion for the petitioner to have made an application under Section 17 of the Act, 1887 seeking permission from the court to deposit the decretal amount which admittedly was tendered by the petitioner on 9 January 2013 after a lapse of five months. 6. The trial court in the impugned order dated 30 January 2014 noted that the petitioner had not deposited the decretal amount as mentioned in the decree while filing the application under Order 9 Rule 13 on 18 August 2012. 6. The trial court in the impugned order dated 30 January 2014 noted that the petitioner had not deposited the decretal amount as mentioned in the decree while filing the application under Order 9 Rule 13 on 18 August 2012. The petitioner subsequently made an application on 7 January 2013 under Section 17 of the Act, 1887 to tender the decretal amount whereas the application under Order 9 Rule 13 was moved much earlier, admittedly, along with the application, no tender to deposit the decretal amount was moved, consequently, the application was rejected. 7. The Supreme Court in Kedarnath vs Mohan Lal Kesarwari and others, AIR 2002 SC 582 : 2002 (1) ARC 186 held that proviso to Section 17 of the Act, 1887 is mandatory, an application seeking to set aside an ex-parte decree must be accompanied by a deposit in the court of the decretal amount. 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 in the nature thereof. The proviso to Section 17(1) of the Act, 1887 does not provide for the extent of time by which such application for dispensation may be filed. It may be filed at any time up to 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. 8. It follows that it does not apply to a deposit. Proviso to Section 17 talks about filing of a previous application for furnishing security, previous to the application for setting aside the ex parte decree. Thus, the period of limitation for filing such application has been provided for under the said proviso. It was held that where the statute does not provide either for extension of time or to condone the default in depositing the rent within the stipulated period, the Court does not have power to do so. Where statute prescribes, specific period within which the deposit has to be made, provision of section 5 of the Limitation Act can not be extended where the default takes place. 9. Where statute prescribes, specific period within which the deposit has to be made, provision of section 5 of the Limitation Act can not be extended where the default takes place. 9. There being no provision under section 17 of the Act for conferring power on Court to condone the delay in complying its conditions, it would not be correct to say that Section 5 of the Limitation Act would still be available to such person who has committed default in making the full deposit, and the Court can condone the delay in making the deposit. 10. A Division Bench in Raj Kumar Makhija and others vs. M/s S.K.S. And Company and others, 2012 (3) ARC 117 : 2012 (9) ADJ 337 was called upon to answer the following question of law : - "Whether the proviso to Section 17 of the Provincial Small Causes Courts Act completely bars any rectification or removal of a bona fide error after the expiry of the period of limitation when substantial compliance by way of deposit of the decretal amount and furnishing security has been made within the period of limitation particularly when Section 5 of the Limitation Act, 1963 has been made applicable to order IX Rule 13 of the Code of Civil procedure?" 11. The Court in para-53 answered the question under reference in the following terms : 1. Any application filed by the tenant/defendant to make good the shortfall either in deposit or security after expiry of period of limitation is of no consequence. The application for setting aside of the exparte decree will be dismissed for non compliance of the said proviso to Section 17 of the Act. 2. Any amount deposited after the expiry of the period of limitation will not be taken into consideration for judging the compliance of the proviso to Section 17 of the Act. However, Court ignores the shortfall in deposit of a negligible amount on the principle of deminimis, as explained above. 3. There being no provision conferring power on the Court to condone the delay in making the deposit, provision of Section 5 of the Limitation Act will not be applicable to deposit contemplated under the proviso to Section 17 of the Act. 12. 3. There being no provision conferring power on the Court to condone the delay in making the deposit, provision of Section 5 of the Limitation Act will not be applicable to deposit contemplated under the proviso to Section 17 of the Act. 12. The controversy involved in the case of Prem Chandra Mishra versus IInd Additional District Judge, 2008 (3) ARC 928 was with regard to grant of adjustment of the earlier deposits made by the tenant under sub section (4) of Section 20 & Section 30 of U.P Act No. 13 of 1972 and under Order XV, Rule 5 of CPC with respect to the deposit to be made under the proviso to Section 17 of the Act, The Court held that the tenant is entitled for the adjustment of the amount already deposited under the various provisions, referred to above. 13. Ultimately, it has been held that in case the amount so deposited is short, after taking into account the previous deposits the application will have to be necessarily dismissed being not competent and maintainable. 14. The application would reflect that the rent was deposited till December 2012 under Section 30 of Act No. XIII of 1972, the petitioner sought permission to deposit the decretal amount as reflected in the decree being Rs.1360/- on 9 January 2013. As per petitioner's own case, the decretal amount was not deposited on or before filing the application under Order 9 Rule 13. 15. In such circumstances of the case, the Court in exercise of its jurisdiction under Article 227 of the Constitution of India is not inclined to interfere with the impugned order. 16. The writ petition being devoid of merit, is liable to be dismissed. 17. The writ petition is, accordingly, dismissed. 18. No order as to costs. 19. However, it is provided that in case the petitioner gives an undertaking on oath before the Court below that he shall vacate the premises in question and hand over the possession of the same peacefully to the respondent-landlord on or before 31 January 2016. 17. The writ petition is, accordingly, dismissed. 18. No order as to costs. 19. However, it is provided that in case the petitioner gives an undertaking on oath before the Court below that he shall vacate the premises in question and hand over the possession of the same peacefully to the respondent-landlord on or before 31 January 2016. The aforesaid undertaking on oath shall be given by the petitioner before the Court below within 10 days from today and the petitioner shall deposit the monthly rent of the premises in question before the Court below, as per the current rent fixed and shall continue to deposit the same by 7th of the each calendar month till the vacation of the premises in question, which amount may be permitted to be withdrawn by the respondent-landlord after due verification by the Court concerned. 20. It is made clear that in the event of default committed by the petitioner/tenant in any of the conditions, the order shall stand automatically vacated without reference to the Court.