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2015 DIGILAW 4062 (ALL)

Sardar Basant Singh v. Sardar Satnam Singh

2015-12-18

ANJANI KUMAR MISHRA

body2015
JUDGMENT Anjani Kumar Mishra,J. Heard Shri Tej Bhan Pandey who has filed his appearance on behalf of the revisionist. 2. This revision under Section 25 of the Provincial Small Causes Court Act, 1887 (in short 'the Act') has been filed by the landlord challenging the order dated 28.10.2015 whereby it has been held that application, paper no. 4-Ga, is not barred by Section 17 of the Act. 3. It appears that a suit filed by the revisionist was decreed ex parte on 21.04.2014. The opposite party filed two applications on 29.08.2014, one for setting aside the ex parte order under order-9 Rule-13 of the Civil Procedure Code (the CPC) and the second application under Section 17 of the Act. The application under Section 17 of the Act was numbered as paper no. 6-Ga (2) praying that a report be obtained as to the amount required to be deposited under Section 17 of the Act and for permission to furnish security in the said amount. 4. It appears that a report was furnished by the munsariam that an amount of Rs. 45,786/- was required to be deposited. The tenant was required to deposit this amount vide order dated 18.09.2014. 5. On the next date, namely, 19.01.2014, the opposite party filed application that the tender for the reported amount be passed and further that according to his calculation a sum of Rs. 4,90,000/- was liable to be deposited as security which may be permitted. An application was also filed that an office report be obtained as regards actual amount to be furnished. On 22.09.2014, yet another application was filed that munsariam had not furnished this report and, therefore, he be directed to furnish the same. On this application, a report was submitted by the munsariam that in fact, an amount of Rs. 5,34,790.50 paise was liable to be deposited. The tenant furnished a bank guarantee to the tune of Rs. 4,90,000/- on 20.05.2014. It was submitted that the entire amount due had been deposited, Rs. 45,770/- by tender and a Bank guarantee to the tune of Rs. 4,90,000/- and that the provision of Section 17 of the Act stood complied. 6. 5,34,790.50 paise was liable to be deposited. The tenant furnished a bank guarantee to the tune of Rs. 4,90,000/- on 20.05.2014. It was submitted that the entire amount due had been deposited, Rs. 45,770/- by tender and a Bank guarantee to the tune of Rs. 4,90,000/- and that the provision of Section 17 of the Act stood complied. 6. The objection of the landlord-revisionist was that the entire amount should have been deposited on the first date itself along with the application for setting aside the ex parte decree and since this mandatory requirement of Section 17 of the Act had not been complied with, the application was liable to be rejected. 7. After hearing the parties, the court below has held that the application under Order-9 Rule-13 of the CPC is not barred by Section 17 of the Act inasmuch as the tenant was from the very beginning prepared to deposit the required amount and had filed an application in this regard along with application under Order-9 Rule-13 of the CPC. The delay in making the deposit was on account of fault of the Court, for which the tenant cannot be penalized and, therefore, the order. 8. The contention of the learned counsel for the revisionist even before this Court is that the provision of Section 17 of the Act is mandatory and that the entire deposit should have been made along with the application under Order-9 Rule-13 of the CPC. Since the deposit has been made subsequently, the same cannot be entertained and the order impugned is liable to be set aside. In support of his contention, he has relied upon by the judgement of this Court reported in 2009 (77) Alld Law Reports 769: Jai Prakash Pandey vs. Babu Lal Jaiswal. 9. I have considered the submission made by the learned counsel for the revisionist and have perused the record as also the judgement relied upon by him. In support of his contention, he has relied upon by the judgement of this Court reported in 2009 (77) Alld Law Reports 769: Jai Prakash Pandey vs. Babu Lal Jaiswal. 9. I have considered the submission made by the learned counsel for the revisionist and have perused the record as also the judgement relied upon by him. In paragraph 10 of the judgement cited, the court has referred to a judgement of the Apex Court in the case of Kedar Nath vs. Mohan Lal kesarwani and Others reported in 2002 (1) ARC 186 wherein the Supreme Court has held as follows: - "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 judgement must be accompanied by a deposit in the Court of the amount due from the applicant under the decree or in pursuance of the judgement. 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." 10. From a bare reading of the relevant portion extracted above it emerges that the Apex Court has held that the provision for deposit can be dispensed with by the Court in its discretion, subject to a previous application by the applicant, seeking directions for leave to furnish security. From a bare reading of the relevant portion extracted above it emerges that the Apex Court has held that the provision for deposit can be dispensed with by the Court in its discretion, subject to a previous application by the applicant, seeking directions for leave to furnish security. It has further observed that such application, if presented along with the application for setting aside the ex parte decree, the same may be treated as a previous application. It has also been observed that any delay of the part of the court in passing orders on this previous application will not be held against the tenant. 11. t is clear from a perusal of the impugned order that the tenant opposite party had filed an application under Section 17 of the Act along with application for setting aside the ex parte decree. This application was rightly entertained in view of what has been held by the Apex Court in its judgement, relevant portion whereof has been extracted above. 12. It is also not in dispute that in the entire amount required to be deposited has been deposited through tender and also by means of a bank guarantee for the balance amount, permission whereof was granted by the court below. 13. In such view of the matter, the impugned order insofar as it holds that the application for setting aside the ex parte judgement and decree, is not barred by Section 17 of the Act, calls for no interference. 14. The revision lacks force and is, therefore, dismissed.