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2017 DIGILAW 355 (ALL)

Mukesh Saluja v. Jasbir Singh

2017-01-25

MANOJ MISRA

body2017
JUDGMENT Manoj Misra, J. -- Heard learned counsel for the revisionist. 2. The present revision has been filed challenging an order dated 05.01.2017 passed by the Additional District Judge, Court No. 4, Saharanpur, In Misc. Case No. 17/16 arising out of SCC Suit No. 5 of 2016. 3. A perusal of the record would go to show that SCC Suit No. 05 of 2016 was instituted by the plaintiff landlord/ respondent against the revisionist for arrears of rent and eviction, inter alia, claiming that the accommodation in dispute was not covered by UP Act No. 13 of 1972 as the agreed rent between the parties was Rs. 7,800 per month. The suit was decreed ex-parte and to set aside the ex-parte decree an application was filed by the defendant-revisionist under Order 9 Rule 13 CPC along with application, under proviso to Section 17(1) of the Provincial Small Cause Courts Act, for enabling him to furnish security in respect of the decretal amount instead of deposit of the decretal amount. By the order impugned the aforesaid application has been disposed of thereby giving 10 days time to the applicant to deposit a bank guarantee in respect of the decretal amount. 4. The submission of the learned counsel for the petitioner is that at the stage of moving an application for setting aside an ex-parte decree the Court must not impose stringent conditions such as requiring the applicant to furnish bank guarantee and, therefore, the Court ought to have allowed the application of the applicant for accepting security other than cash and bank guarantee in respect of decretal amount. 5. I have considered the submission of the learned counsel for the petitioner and have perused the record. 6. The Provisions of Section 17 of the Provincial Small Causes Courts Act along with its proviso are being extracted herein below: - "17. Application of the Code of Civil Procedure.? 5. I have considered the submission of the learned counsel for the petitioner and have perused the record. 6. The Provisions of Section 17 of the Provincial Small Causes Courts Act along with its proviso are being extracted herein below: - "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. 7. A reading of the proviso extracted herein above, would go to show that an applicant seeking setting aside a decree passed ex-parte or seeking for a review of judgment shall, at the time of presenting his application, either deposit in the Court, the amount due from him in pursuance of the judgment or give such security for the compliance with the judgment as the Court may on a previous application made by him in this behalf, have directed. The use of the word may leaves a discretion with the Court as to the nature of the security which the applicant has to furnish for the performance of decree or compliance with the judgement. 8. To invoke discretion of the Court in favour of the applicant, the applicant could bring facts to the notice of the Court to prima facie establish that the decretal amount awarded by the ex parte decree was not due and payable. 9. In a suit of the nature instituted by the landlord-opposite party claiming that the premises were not governed by the UP Act No. 13 of 1972 as the agreed rate of rent between the parties was Rs. 9. In a suit of the nature instituted by the landlord-opposite party claiming that the premises were not governed by the UP Act No. 13 of 1972 as the agreed rate of rent between the parties was Rs. 7,800 per month, the defences are limited therefore, in absence of any statement made by the tenant that the agreed rent was not Rs. 7,800 per month as also in absence of any documentary material to show that the decretal amount was not due as there were receipts to prove payment, if the Court has directed the applicant to furnish bank guarantee of the decretal amount, it cannot be said that the Court acted in an arbitrary or unfair manner while exercising its jurisdiction conferred by the proviso to Section 17(1) of the Act 1987 so as to warrant interference in revisional jurisdiction under Section 25 of the Act. 10. In the instant case, in the application of the applicant, which is at page 41 to 45, there is nothing to show that the agreed rent was not Rs. 7,800/- per month. Further there was no claim that there were rent receipts to show that the rent claimed in the suit was already paid. Under the circumstances if the court below required deposit of bank guarantee for satisfying the decretal amount, no fault can be found with the order. 11. The revision is dismissed.