Research › Search › Judgment

Allahabad High Court · body

2015 DIGILAW 294 (ALL)

Iram Kahkasha @ Chandni v. Afzal Khan

2015-02-13

SUDHIR AGARWAL

body2015
JUDGMENT Sudhir Agarwal, J. 1. Heard Sri Dhruva Narayan, learned Counsel appearing for revisionist and Sri S.C. Kesharwani, Advocate, for respondent. 2. This revision under Section 25 of Provincial Small Cause Courts Act, 1887 (hereinafter referred to as "Act, 1887") has arisen from the order dated 3.8.2002 passed by Additional District Judge, Court No. 1, Etah in S.C.C. Misc. No. 18 of 2001 in S.C.C. Suit No. 2 of 2001 allowing defendant-applicant's application for restoring Small Cause Case No. 2 of 2001 and recalling ex-parte decree and permitting time to the defendant-applicant to file written statement and, thereafter to decide the suit by S.C.C. Court on merits. 3. Counsel for revisionist stated that there is no compliance of Section 17 of Act, 1887. However, from para 3 of the order of Court below, I find that the application for setting aside ex-parte decree was filed on 29.8.2001 within time and instead of depositing decretal amount, an application 5-C was filed on the same date seeking permission for filing security bond in lieu of cash deposit and that was part of record, but, unfortunately, the Court could not pass any order. In these circumstances, it cannot be said that there is no compliance of Section 17 of the Act, 1887. The only error committed by Court below is the observation made by it in the impugned order that Section 17 of Act, 1887 is directory though this Court as well as Apex Court has observed that Section 17 is mandatory. 4. In these circumstances, it cannot be said that there is no compliance of Section 17 of the Act, 1887. The only error committed by Court below is the observation made by it in the impugned order that Section 17 of Act, 1887 is directory though this Court as well as Apex Court has observed that Section 17 is mandatory. 4. Section 17 of Act, 1887 reads as under: "17 Application of the Code of Civil Procedure- (1) The procedure prescribed in the Code of Civil Procedure, 1908 shall save in so far as is otherwise provided by the 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 provision to sub-section (1), the security may be realized in manner provided by Section 145 of the Code of Civil Procedure, 1908." 5. A bare perusal of above provision makes it clear that procedure provided in Code of Civil Procedure has to be followed by Judge, Small Causes in all suits cognizable by it and in all proceedings arising out of such suits. Proviso has been added that 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. 6. While construing Section 17 proviso to Act, 1887 and its compliance, Apex Court in Kedarnath Vs. 6. While construing Section 17 proviso to Act, 1887 and its compliance, Apex Court in Kedarnath Vs. Mohan Lal Kesarwari and others, 2002 (2) SCC 16 held that aforesaid provision is mandatory and an application filed requesting for setting aside an ex parte decree passed by a Court of Small Causes or for review of its judgement must be accompanied with deposit of amount due from applicant under decree or in pursuance of a judgment and said condition, if not complied with, application is not maintainable. Relevant paragraphs 1, 2, 5, 8 and 9 of the said judgment are quoted under: "1. The appellant-landlord filed a suit for recovery of arrears of rent and for eviction against the tenant-respondents on the ground available under Clause (a) of sub-section (2) of Section 20 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter U.P. Urban Buildings Act, for short. A suit of the nature filed by the appellant being triable by a Court of Small Causes as provided by the U.P. Civil Laws Amendment Act, 1972 was filed in the Court of Small Causes, Allahabad. On 9.8.1996, the suit came to be decreed ex parte. The decree directed the tenant-respondents to pay an amount of Rs.8500/- as pre-suit arrears of rent and a further amount calculated at the rate of Rs. 250/- per month from the date of institution of suit to the date of recovery of possession. A decree for eviction was also passed. The decree was put to execution and on 21.2.1998 the decree-holder obtained possession over the suit premises with police help. The Court amin certified the delivery of possession to the executing Court. On 26.2.1998, the tenant-respondent moved an application under Order 9, Rule 13 of the C.P.C. seeking setting aside of the ex parte decree. Neither the amount due under the decree was deposited nor an application was filed seeking direction of the Court to give security for the performance of the decree in lieu of depositing the decretal amount. On 14.10.1998, arguments were heard on the application under Order 9, Rule 13 of the C.P.C. The Court appointed 16.10.1998 for orders. 2. Neither the amount due under the decree was deposited nor an application was filed seeking direction of the Court to give security for the performance of the decree in lieu of depositing the decretal amount. On 14.10.1998, arguments were heard on the application under Order 9, Rule 13 of the C.P.C. The Court appointed 16.10.1998 for orders. 2. It appears that during the course of hearing the appellant decree-holder pointed out to the Court that the application seeking setting aside of the ex parte decree was not maintainable and was liable to be dismissed in limine for non-compliance with proviso to Section 17 of the Provincial Small Cause Courts Act, 1887 (hereinafter, 'the PSCC Act' for short). On 15-10-1998, the tenant-respondents filed an application praying that they may be permitted to furnish security for payment of decretal amount. The reason assigned for failure to deposit the amount due under the decree or to furnish security alongwith the application seeking setting aside of the ex parte decree is somewhat oscillating. At one place it is stated that their advocate had never advised them to deposit the decretal amount as the advocate himself was not aware of the provision. Then, at another place, it is stated that the rent was already paid to the landlord decree-holder and there were no arrears required to be deposited. At yet another place it is stated that their advocate had advised them that on the application seeking setting aside of the ex parte decree being allowed and the suit being restored to file, on the first date of hearing the tenant has to deposit the rent in arrears which would be done at that stage only. Vide order dated 15.11.1998, the learned Judge, Small Causes, rejected the application filed by the tenant-respondent forming an opinion that ignorance of law was not excusable and the application under Order 9, Rule 13 of C.P.C. filed without complying with proviso to Section 17 of the PSCC Act was not maintainable. 5. It is not disputed at the Bar that such a suit as was filed by the landlord-appellant is, in the State of U.P., to be heard and disposed of by a Court of Small Causes and hence would be governed by the provisions of the PSCC Act. Section 17 thereof provides as under : ..... 5. It is not disputed at the Bar that such a suit as was filed by the landlord-appellant is, in the State of U.P., to be heard and disposed of by a Court of Small Causes and hence would be governed by the provisions of the PSCC Act. Section 17 thereof provides as under : ..... It is relevant to note that the proviso to sub-section (1) of Section 17 has undergone a material change through an amendment brought in by Act No. IX of 1935. Earlier there were the words "security to the satisfaction of the Court for the performance of the decree or compliance with the judgment, as the Court may direct" which have been deleted and substituted by the present words - "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 his behalf, have directed." The Statement of Objects and Reasons for the 1935 amendment was set out as under : "The Act is designed to remove certain doubts which have arisen in the interpretation of the proviso to sub-section (1) of Section 17 of the Provincial Small Cause Courts Act, 1887. As the section stands, an applicant is required to give security to the satisfaction of the Court at the time of presenting his application. It follows that, in order to ascertain what security satisfies the Court, the applicant must already have made an application in that behalf. There is some doubt whether the words "as the Court may direct" apply to the deposit of the whole decretal amount as well as to the giving of approved security. The Act is intended to make it clear that the preliminary application to ascertain what security will satisfy the Court must be made and decided before the substantive application for the order to set aside the decree, and that it always is open to the applicant to adopt the alternative course of depositing the total decretal amount. (Vide Statement of Objects and Reasons, Gazette of India, 1935, Pt. V, p. 90)." 8. A bare reading of the provision shows that the Legislature have 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. (Vide Statement of Objects and Reasons, Gazette of India, 1935, Pt. V, p. 90)." 8. A bare reading of the provision shows that the Legislature have 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. An application seeking to set aside an ex parte decree passed by a Court of Small Causes or for a review of its judgment must be accompanied by a deposit in the Court of the amount due from the applicant under the decree or in pursuance of the judgment. 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 and the nature thereof. The proviso does not provide for the extent of time by which such application for dispensation may be filed. We think that 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. The obligation of the applicant is to move a previous application for dispensation. It is then for the Court to make a prompt order. The delay on the part of the Court in passing an appropriate order would not be held against the applicant because none can be made to suffer for the fault of the Court. 9. In the case at hand, the application for setting aside ex parte decree was not accompanied by deposit in the Court of the amount due and payable by the applicant under the decree. The applicant also did not move any application for dispensing with deposit and seeking leave of the Court for furnishing such security for the performance of the decree as the Court may have directed. The application for setting aside the decree was therefore incompetent. It could not have been entertained and allowed." 7. Thus, the judgment of Apex Court in Kedarnath Vs. Mohan Lal Kesarwari (supra) is very clear on this score that proviso of Section 17 (1) is mandatory in nature and has to be complied with. 8. The application for setting aside the decree was therefore incompetent. It could not have been entertained and allowed." 7. Thus, the judgment of Apex Court in Kedarnath Vs. Mohan Lal Kesarwari (supra) is very clear on this score that proviso of Section 17 (1) is mandatory in nature and has to be complied with. 8. Be that as it may, since there was no fault of the defendant-applicant and only for the reason that the Court could not pass the order, for that reason defendant-applicant cannot be made to suffer. 9. Counsel for revisionist then contended that there are some observations made by Court below in the impugned order, which may affect the merits of the suit. 10. It goes without saying that those observations are only for the purpose of passing the order on defendant-applicants' application and will not influence the trial of the suit on merits. 11. Since it is an old suit of 2001, this Court directs that Trial Court shall proceed to decide the suit expeditiously, and, in any case, within one year from the date of production of certified copy of this order, subject to other business of the Court. 12. With the aforesaid direction, the revision is dismissed. 13. Interim order, if any, stands vacated.