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Allahabad High Court · body

2018 DIGILAW 625 (ALL)

VIJAY KUMAR AGARWAL v. SUBHASH CHAND

2018-03-15

SURYA PRAKASH KESARWANI

body2018
JUDGMENT Hon’ble Surya Prakash Kesarwani, J.—Heard Sri K.M. Garg, learned counsel for the landlord-decree holder. 2. As per office report dated 14.3.2018, notice upon the respondent No. 1 has been served on 24.2.2018. Thus, service of notice upon the respondent No. 1 is deemed sufficient. No one has appeared on behalf of the respondent No. 1. 3. Briefly stated facts of the present case are that the landlord-decree holder/petitioner filed SCC No. 10 of 2008 (Vijay Kumar Agarwal v. Subhash Chand and Haji Mundi @ Mahood Ali) on 24.4.2008 for eviction of the defendant-judgment debtor/respondent from the tenanted house bearing Municipal No. 103, Ward No. 5, Gali Ganga Sahai, Town Loni, Tehsil and District Ghaziabad. This house was originally owned by decree holder’s father Sri Dharam Pal who died on 23.3.1993 and the said property was inherited by his heirs being the decree holder and three daughters. It was alleged in the plaint that the defendant-judgment debtor/respondent No. 1 has defaulted in payment of rent. It appears that subsequently the Defendant/respondent No. 2 herein occupied the house as sub-tenant. In the aforesaid suit, both the defendants have appeared. As per order-sheet entry dated 21.7.2009, the judgment-debtor/respondent No. 1 appeared and the next date was fixed for 11.8.2009 for written statement. On 11.8.20009, the defendant-judgment debtor/respondent No. 1 received a copy of the plaint. On 21.10.2009, he sought adjournment. Again on 17.11.2009, 8.12.2009, 8.2.2010 and 23.2.2010, he filed adjournment applications being Paper No. 30ga, 32ga, 33ga and 36ga respectively. The adjournment applications being Paper No. 30ga, 32ga and 33ga were allowed on the relevant dates and the case was adjourned. The adjournment application being Paper No. 36ga filed on 23.2.2010 was rejected and the file was directed to be put up on 9.3.2010 on which date the judgment-debtor/respondent No. 1 became absent. Consequently, the case was directed to be proceeded ex parte. After the evidences were led by the plaintiff-decree holder/petitioner herein, the case was fixed for argument on several dates and lastly it was decreed by judgment dated 9.9.2011 and the decree dated 14.9.2011. Thereafter, the decree-holder/petitioner filed an Execution Case No. 3 of 2012. During pendency of the execution case, the aforesaid sub-tenant namely Sri Haji Mundi @ Mahmood Ali filed Applications 3ga and 5ga under Order IX Rule 13 read with Section 151 C.P.C. alongwith Application under Section 5 of the Limitation Act being Misc. Thereafter, the decree-holder/petitioner filed an Execution Case No. 3 of 2012. During pendency of the execution case, the aforesaid sub-tenant namely Sri Haji Mundi @ Mahmood Ali filed Applications 3ga and 5ga under Order IX Rule 13 read with Section 151 C.P.C. alongwith Application under Section 5 of the Limitation Act being Misc. Case No. 20 of 2014 (Haji Mundi @ Mahmood Ali v. Vijay Kumar Agarwal), which was rejected by the Judge Small Cause Court, Ghaziabad by order dated 29.10.2014, as under: ^^izLrqr ekeys esa ;g Lohd`r rF; gS fd izkFkhZ@izfroknh@ fu.khZr _.kh us iquZLFkkiu izkFkZuki= izLrqr djrs le; mDr izkfo/kku ds vuqikyu gsrq dksbZ izkFkZuki= izLrqr ugha fd;k gSA izkFkhZ us iquZLFkkiu izkFkZuki= izLrqr djus esa gq, fcyEc ds lUnHkZ esa tks vius izkFkZuki= esa Li"Vhdj.k fn;k gS] og Hkh i;kZIr ugha gSA mDr fcyEc {kE; fd;s tkus ;ksX; ugha gSA blds vykok izkFkhZ us vius iquZLFkkiu izkFkZuki= 3x esa ewy okn esa vuqifLFkr jgus ds lUnHkZ esa tks Li"Vhdj.k fn;k gS] og Hkh i;kZIr ugha gS rFkk mlls eSa lUrq"V ugha gwaA bl izdkj rF;ksa ds fo'ys"k.k ds ifjisz{; esa bl fu"d"kZ ij igqWprk gwa fd foi{kh@oknh@ fMØhnkj ds fo}ku vf/koDrk ds rdZ cy;qDr gSa rFkk izkFkhZ@izfroknh@fu.khZr _.kh ds fo}ku vf/koDrk ds rdZ cyghu gksus ds dkj.k izkFkZuki= 3x ,oa 5x fujLr fd;s tkus ;ksX; gSA vkns'k izkFkhZ@izfroknh@fu.khZr _.kh dk izkFkZuk i= 5x vUrxZr /kkjk 5 fe;kn vfèkfu;e rFkk izkFkZuk i= 3x vkns'k 9 fu;e 13 ,oa /kkjk 151 lhŒihŒlhŒ fujLr fd;k tkrk gSA i=okyh nkf[ky nrj gksA** 4. Thereafter, the judgment-debtor/respondent No. 1 herein filed an Application dated 21.8.2014 under Order IX Rule 13 read with Section 151 C.P.C. on the only ground that he could get the information about judgment dated 9.9.2011 when the respondent No. 2 Haji Mundi @ Mahmood Ali told him about it on 20.8.2014. In paragraph-5 of the application, he vaguely stated that he was ill and was unable to walk and, therefore, he could not know about it. He further stated that he had instructed his counsel to prepare the written statement but his counsel has not informed him about the proceedings of the case. No documents were filed by him in support of his illness. The aforesaid application under Order IX Rule 13, C.P.C. was registered as Misc. He further stated that he had instructed his counsel to prepare the written statement but his counsel has not informed him about the proceedings of the case. No documents were filed by him in support of his illness. The aforesaid application under Order IX Rule 13, C.P.C. was registered as Misc. Case No. 60 of 2014 (Subhash Chand v. Vijay Kumar Agarwal) which is reproduced below: ^^U;k;ky; Jheku [kQhQk tt egksn;] xkft;kckn fofo/k okn la[;k&60@2014 ewy okn la[;k&10@2008 lqHkk"k pUn iq= Jh jes'k pUn fuoklh edku uEcj&218 fxfj ekfdZV yksuh] rglhy o ftyk xkft;kckn--------------izkFkhZ cuke 1- fot; dqekj vxzoky iq= LoŒ Jh /keZiky fuoklh 42 ts] ,DlVsU'ku xyh uEcj&5 y{eh uxj fnYyhA 2- gkth ewanh mQZ egewn vyh iq= Jh fclkjr vyh fuoklh xzke ikch lkndiqj ijxuk yksuh rglhy o ftyk xkft;kckn---------foi{khx.k izkFkZuk i= vUrxZr vkns'k&9 fu;e 13 o /kkjk 151 lhŒihŒlhŒ Jheku th] izkFkhZ fuEu fuosnu djrk gS %& 1- ;g fd mDr okn esa izkFkhZ o izfroknh uEcj 2 ds f[kykQ ,di{kh; fu.kZ; o vkns'k rFkk fMxzh fnukad 09-09-2011 dks Jheku [kQhQk tt egksn; xkft;kckn }kjk mDr okn esa voS/kkfud :i ls ikfjr dj fn;k FkkA tks gj gkyr esa [k.Muh; gSA 2- ;g fd fnukad 23-2-2010 dks izkFkhZ us mDr okn esa LFkxu izkFkZuk i= 36x izLrqr fd;k Fkk ftls U;k;ky; us voS/kkfud :i ls fujLr dj fn;k FkkA 3- ;g fd mDr okn oknh us lgh rF;ksa dks fNikdj o >wBs rF;ksa ds vk/kkj ij nk;j fd;k gSA 4- ;g fd izkFkhZ dks mDr okn la[;k 10 lu 2008 fot; dqekj cuke lqHkk"k pUnz vkfn esa xyr :i ls i{kdkj cuk;k x;k Fkk rFkk izkFkhZ edku la[;k&103 okMZ la[;k&5 xyh xaxk lgk; yksuh ftyk xkft;kckn esa ugha jgrk gS rFkk lu 1988 ls mDr irk edku uaŒ 218 fxfj ekfdZV yksuh esa jg jgk gSA 5- ;g fd izkFkhZ o`) o chekj gksus ds dkj.k pyus fQjus esa vleFkZ jgk Fkk o vius vf/koDrk dks crk fn;k Fkk fd izfrokn i= rS;kj dj ys] ijUrq izkFkhZ ds vf/koDrk us uk rks izfrokn i= rS;kj fd;k vkSj uk gh izkFkhZ dks lwfpr fd;k ftlls izkFkhZ dks mDr okn dh dk;Zokgh dk dksbZ Kku ugha jgkA 6- ;g fd fookfnr lEifRr dk izkFkhZ dks vdkj.k gh fdjk;snkj ekudj ,drjQk fMxzh cuok yh gS tcfd izkFkhZ 1988 ls gh fxfj ekfdZV esa jg jgk gS rFkk mDr okn ds ;ksftr gksus ds le; Hkh fookfnr lEifRr esa ugha jg jgk Fkk rFkk oknh ds f[kykQ >wBk eqdnek pyk FkkA 7- ;g fd ,di{kh; vkns'k o fMxzh fnukad 09-09-2011 izfroknh uEcj&1 izkFkhZ ds f[kykQ gksus ls izkFkhZ dk dkQh uqdlku o gdryQh gS ftldh {kfriwfrZ fdlh Hkh n'kk esa lEHko ugha gSA 8- ;g fd vkns'k fnukad 9-9-2011 dk Kku izkFkhZ dks izfroknh uEcj&2 ds crkus ij fnukad 20-8-2014 dks gqvk FkkA 9- ;g ,di{kh; vkns'k fnukad 09-9-2011 dks [kf.Mr djkus gsrq izkFkhZ us tku cw>dj dksbZ nsjh ugha dh gS rFkk Kku gksus ij rqjUr fu;ekuqlkj U;k;ky; esa mDr foŒ okn izLrqr dj jgk gSA 10- ;g fd mDr ,drjQk vkns'k o fu.kZ; o fMxzh fnukafdr 09-09-2011 gj gkyr esa voS/kkfud gS og [k.Muh; gS rFkk [kf.Mr fd;k tkuk U;k;fgr esa vko';d gSA vr% izkFkZuk gS fd mDr okn la[;k 10@2008 fot; dqekj cuke lqHkk"k pUn vkfn esa ekuuh; tt [kQhQk xkft;kckn }kjk ikfjr ,d i{kh; fu.kZ; o vkns'k fnukad 09-09-2011 o fMØh fnukafdr 14-09-2011 dks lsVklkbM fd;k tk;s o okn dks iqu% uEcj lkfcd ij dk;e djds xq.knks"k ds vk/kkj ij fuf.Zkr fd;k tk;sA vkidh vfr d`ik gksxhA izkFkhZ lR;kiu %& eSa lR;kfir djrk gwW fd izkFkZuki= ds leLr dFku esjs }kjk futh Kku esa lc lR; gSA LFkku&xkftkckn fnukad&21&8&14** 5. The aforesaid application was allowed by the impugned order dated 29.7.2016 on the ground that the explanation submitted for delay in filing the restoration application and the explanation submitted for non-appearance are sufficient. No reason whatsoever were recorded by the Judge Small Cause Court, Ghaziabad in the aforesaid impugned order dated 29.7.2016 for his aforesaid conclusion. The case was restored on cost of Rs. 5000/-. The SCC Revision No. 25 of 2017 filed by the decree holder to challenge the aforesaid impugned order dated 29.7.2016 in Misc. No reason whatsoever were recorded by the Judge Small Cause Court, Ghaziabad in the aforesaid impugned order dated 29.7.2016 for his aforesaid conclusion. The case was restored on cost of Rs. 5000/-. The SCC Revision No. 25 of 2017 filed by the decree holder to challenge the aforesaid impugned order dated 29.7.2016 in Misc. Case No. 60 of 2014, was rejected by the Additional District Judge, Court No. 7, Ghaziabad by the impugned order dated 11.10.2017 as under: ^^i=koyh ds voyksdu ls ;g Li"V gks jgk gS fd fofo/k okn la[;k 60@2014 tks vkosnd lqHkk"k pUn }kjk izLrqr fd;k x;k gS mlesa mlds }kjk ;g dFku fd;k x;k gS fd izkFkhZ o`) o chekj gksus ds dkj.k pyus fQjus esa vleFkZ jgk FkkA vf/koDrk }kjk mldks dksbZ lwpuk ugha nh x;h vkSj mUgsa okn dh tkudkjh vf/koDrk }kjk u nsus ij ;g tkudkjh ugha Fkh fd okn esa D;k dk;Zokgh py jgh gSA vkns'k fnukad 09-09-2011 dh tkudkjh izfroknh la[;k&2 ds crkus ij fnukad 20-08-2014 dks gqbZA mlds i'pkr mDr izkFkZuk i= izLrqr fd;k x;kA lkFk esa vkosnd lqHkk"k pUn }kjk 'kiFk i= Hkh izLrqr fd;k x;kA vkosnd ds izkFkZuk i= ij foi{kh }kjk vkifRr 16x /kkjk 5 fe;kn vf/kfu;e 18x vUrxZr vkns'k 9 fu;e 13 lhŒihŒlhŒ izLrqr dh x;hA fo}ku voj U;k;ky; }kjk nksuksa i{kksa dks lquus ds mijkUr izkFkZuk i= vkns'k 9 fu;e 13 lhŒihŒlhŒ gtsZ ij Lohdkj fd;k x;k x;k gS rFkk fo}ku voj U;k;ky; }kjk okn dks xq.k nks"k ds vk/kkj ij fuLrkj.k gsrq vkosnd dks volj fn;k x;k gS rkfd nksuksa i{kksa dks lqudj y?kqokn dk fuLrkj.k gks ldsaA fuxjkuhdrkZ dh vksj ;g Hkh rdZ fn;k x;k gS fd mDr okn esa foi{kh la[;k 2 gkth ewanh mQZ egewn vyh }kjk Hkh vkns'k 9 fu;e 13 lhŒihŒlhŒ dk izkFkZuk i= ,d i{kh; fMØh dks fujLr fd;s tkus gsrq izLrqr fd;k x;k Fkk tks fo}ku voj U;k;ky; }kjk fujLr dj fn;k x;kA bl izdkj tks vkosnd lqHkk"k pUn }kjk izLrqr izkFkZuk i= voj U;k;ky; }kjk Lohdkj fd;k gS og fof/k fo:) gSA i=koyh ds voyksdu ls ;g Li"V gks jgk gS fd y?kqokn esa nf'kZr izfroknh la[;k 2 gkth ewanh mQZ egewn vyh }kjk tks vkns'k 9 fu;e 13 lhŒihŒlhŒ dk izkFkZuk i= izLrqr fd;k x;k Fkk og fofo/k okn la[;k 20@2014 voj U;k;ky; }kjk fnukad 29-10-2014 dks fujLr fd;k x;k gSA vkosnd gkth ewanh mQZ egewn vyh }kjk izLrqr izkFkZuk i= /kkjk 17 izksfof'k;y Leky dkt dksVZ ,DV ls ckf/kr gksus ds dkj.k fujLr fd;k x;k gSA /kkjk 17 izksfof'k;y Leky dkt dksVZ ,DV 1987 ds vUrxZr fu.khr_.kh ,d i{kh; vuqKfIr ds vuqØe esa /kujkf'k U;k;ky; esa tek djsxk] tks mlds }kjk tek u djus ij mDr izkFkZuk i= voj U;k;ky; }kjk fujLr fd;k x;k Fkk tcfd izLrqr ekeys esa vkosnd lqHkk"k pUn }kjk /kujkf'k tek dh x;h ftldk mYys[k fo)ku voj U;k;ky; }kjk vius vkns'k fnukad 29-07-2016 esa fd;k gS fd vkosnd }kjk izkFkZuk i= 90x ls 91x eqŒ 43]000@& :i;s dh ,QŒMhŒvkjŒ i=koyh ij izLrqr dh x;h gSA fof/k dk fl}kUr gS fd dksbZ Hkh fu.kZ;@vkns'k nksuksa i{kksa dks lquus ds i'pkr gh ikfjr fd;s tk;sa] ;fn ,d i{k dks lqudj nwljs i{k dks fcuk lqus vkns'k ikfjr fd;k tkrk gS rks ;g uSlfxZd U;k; dh Js.kh esa ugha vkrk gS bl izdkj fo)ku voj U;k;ky; }kjk tks vkns'k ikfjr fd;k x;k gS og {ks=kf/kdkfjrk ds vUrxZr ikfjr fd;k x;k gS mles dksbZ vfu;ferrk] voS/kkfudrk ,oa =qfV nf'kZr ugha gksrh gSA vr% iz'uxr vkns'k esa bl U;k;ky; }kjk fdlh izdkj ds gLr{ksi dh vko';drk ugha gSA mijksDr flfoy fjohtu fujLr gksus ;ksX; gSA vkns'k [kQhQk fjohtu la[;k 25@2017 fot; dqekj vxzoky cuke lqHkk"k pUn fujLr fd;k tkrk gSA bl vkns'k dh ,d izfr ds lkFk rychnk i=koyh fu;ekuqlkj lacaf/kr dks okil iszf"kr dh tk;saA fnukad 11&10&2017 ¼jkds'k oekZ½ vij ftyk U;k;kèkh'k] U;k;ky; la[;k 7] xkft;kcknA** 6. Bare perusal of both the impugned order dated 29.7.2016 passed by the Judge Small Cause Court, Ghaziabad and the revisonal order dated 11.10.2017 passed by the Additional District Judge, Court No. 7, Ghaziabad leaves no manner of doubt that both the Courts below have not assigned even a single reason with reference to any evidence on record that the judgment-debtor/respondent No. 1 was prevented by sufficient cause for not appearing in SCC No. 10 of 2008 on dates subsequent to 9.3.2010 or that the delay in filing the Application under Order IX Rule 13 dated 21.8.2014 was for sufficient cause. 7. That apart, the finding of the revisional Court that the application of the respondent No. 2 herein under Order IX Rule 13 C.P.C. being Misc. Case No. 20 of 2014 was rejected on 29.10.2014 on account of non-compliance of conditions of Section 17 of the Provincial Small Cause Court Act, 1887, is manifestly perverse inasmuch as from bare perusal of the order dated 29.10.2014, it is evident that the application of Haji Mundi @ Mahmood Ali (respondent No. 2 herein) was rejected on account of unexplained delay and no reason for non-appearance. 8. In view of the facts as noted above, it is evident that the Judge Small Cause Court has committed a manifest error of law to allow the restoration application and the delay condonation application without there being any legally acceptable explanation either for non-appearance or for delay in filing the application. The entire averments made with regard to non-appearance and for delay were quite vague and were not supported by any documentary evidence. That apart, the Judge Small Cause Court completely lost sight of the fact that the several applications for adjournment were moved from time to time by the judgment-debtor/respondent No. 1 which were allowed and on several occasions, he was personally present in Court. The Revisonal Court also committed a manifest error of law to uphold the order of the Judge Small Cause Court in Misc. Case No. 60 of 2014 filed by the Judgement-debtor/respondent No. 1 which appears to be an abuse of process of law inasmuch as the SCC No. 10 of 2008 was filed on 29.5.2008, which was decreed by judgment dated 9.9.2011 and the decree dated 14.9.2011 and as a consequence thereof, Execution Case No. 3 of 2012 was filed by the decree-holder/petitioner. During pendency of the execution case, the applications being Misc. Case No. 20 of 2014 and Misc. Case No. 60 of 2014 were filed merely to obstruct the execution of the decree. The rent case was filed in the year 2008 and the decree was passed in the year 2011. More than seven years have passed but by one way or the other, the respondents-judgment debtors/tenants have succeeded to delay the execution of the decree. 9. Apart from above, the finding of the Courts below that the conditions of Section 17 of the Provincial Small Cause Courts Act, 1887 were complied with by the judgment debtor/respondent No. 1, is also perverse inasmuch as the application was filed by the judgement-debtor/respondent No. 1 on 21.8.2014 under Order IX Rule 13 C.P.C. while the application for seeking permission for depositing security under Section 17 of the Provincial Small Cause Courts Act, 1887 was filed on 26.3.2015 whereas the security was furnished on 4.7.2016. According to the decree-holder/petitioner herein, the security furnished was insufficient. Interpretation of Section 17: 10. Section 17 of the Provincial Small Cause Courts Act 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 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).” 11. In the case of Kedarnath v. Mohan Lal Kesarwani and others, 2002 (1) ARC 186, Hon’ble Supreme Court explained the provisions of Section 17 of the Provincial Small Cause Court Act, 1887 and held as under: “7. In the case of Kedarnath v. Mohan Lal Kesarwani and others, 2002 (1) ARC 186, Hon’ble Supreme Court explained the provisions of Section 17 of the Provincial Small Cause Court Act, 1887 and held as under: “7. The object behind establishing Small Cause Courts conferred with jurisdiction to try summarily such specified category of cases which need to be and are capable of being disposed of by adopting summary procedure of trial is to secure an expeditious disposal and to curtail the lengthy procedure of litigation. Excepting an order for compensatory costs in respect of false or vexatious claims or defences or an order imposing fine or directing the arrest or detention in the civil prison of any person (except where such arrest or detention is in execution of a decree), orders and decrees of Courts of small causes are not appealable: they are only revisable by the High Court (or by District Court under Section 115 of CPC as amended in its application to State of U.P.). The jurisdiction to entertain and hear an application to set aside a decree passed ex parte or for a review of judgment by Courts of small causes is sought to be qualified and narrow down by imposing condition as to deposit or giving security for performance or compliance by enacting proviso to sub-section (1). Such a provision fits in the scheme of the PSCC Act. Although there is no authoritative pronouncement by this Court (none brought to our notice) interpreting the nature and scope of the proviso however, the learned counsel for the appellant brought to our notice a number of decisions delivered by the High Courts of Allahabad, Oudh, Madras, Orissa, Rajasthan and Lahore which have taken the view that the proviso is mandatory and non-compliance therewith would entail dismissal of the application because such non-compliance cannot be condoned or overlooked by the Court. They are, to wit : Mohammad Ramzan Khan v. Khubi Khan, AIR 1938 Lahore 18 (DB), Murari Lal v. Mohammad Yasin, AIR 1939 Allahabad 46, Mt. Shikhani v. Bishambhar Nath, AIR 1941 Oudh 103, Jagdamba Prasad and others v. Ram Das Singh and another, AIR 1943 Allahabad 288, Roshan Lal v. Brij Lal Amba Lal Shah, AIR 1949 Madras 419, Khetra Dolai v. Mohan Bissoyi, AIR 1961 Orissa 37, and Dhanna v. Arjun Lal, AIR 1963 Rajasthan 240. Shikhani v. Bishambhar Nath, AIR 1941 Oudh 103, Jagdamba Prasad and others v. Ram Das Singh and another, AIR 1943 Allahabad 288, Roshan Lal v. Brij Lal Amba Lal Shah, AIR 1949 Madras 419, Khetra Dolai v. Mohan Bissoyi, AIR 1961 Orissa 37, and Dhanna v. Arjun Lal, AIR 1963 Rajasthan 240. As the present case arises from the State of Uttar Pradesh, the learned counsel for the appellant cited a series of decisions delivered by Allahabad High Court so as to show the view of the law being consistently taken there. These are : Krishan Kumar v. Hakim Mohd., 1978 ALJ 738, Sharif v. Suresh Chand and others, 1979 AWC 256, Roop Basant v. Durga Prasad and another, 1983 (1) ARC 565, Mohammed Islam v. Faquir Mohammad, 1985 (1) ARC 54, Krishan Chandra Seth v. Dr. K.P. Agarwal and another, 1988 (1) ARC 310, Mamta Sharma v. Hari Shankar Srivastava and others, 1988 (1) ARC 341, Mohammed Yasin v. Jai Prakash, 1988 (2) ARC 575, Purshottam v. Special Additional Sessions Judge, Mathura and others, 1991 (2) ARC 129, Ram Chandra (deceased L.Rs.) and others v. IXth Additional District Judge, Varanasi and others, AIR 1991 Allahabad 223 : 1991 (1) ARC 501, Sagir Khan v. The District Judge, Farrukhabad and others, 1996 (27) ALR 540 : 1996 (1) ARC 414 , Mohammad Nasen v. Third Additional District Judge, Faizabad and others, AIR 1998 All. 125 , Beena Khare v. VIIIth Additional District Judge, Allahabad and another, 2000 (2) ARC 616 . 8. The learned counsel for the respondent brought to our notice Surendra Nath Mittal v. Dayanand Swarup and another, AIR 1987 Allahabad 132, Chigurupalli Suryanarayana v. The Amadalavalasa Co-operative Agricultural Industrial Society Ltd., AIR 1975 AP 196 and Tarachand Hirachand Porwal v. Durappa Tavanappa Patravali, AIR 1943 Bombay 237. All the three decisions are single Bench decisions. Suffice it to observe that the first two decisions are more or less ad hoc decisions which do not notice other decisions and the general trend of judicial opinion. The view propounded therein does not appeal to us. The Bombay decision does not lay down any general proposition of law and proceeds on its own facts. 9. Suffice it to observe that the first two decisions are more or less ad hoc decisions which do not notice other decisions and the general trend of judicial opinion. The view propounded therein does not appeal to us. The Bombay decision does not lay down any general proposition of law and proceeds on its own facts. 9. 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. “ 12. In the case of Raj Kumar Makhija and others v. M/s. S.K.S. And Co. and others, 2012(9) ADJ 337 (DB) (Para.53), a Division Bench of this Court held as under: “53. Viewed as above, we answer the question referred to us in the following manner: 1. Any application filed by the tenant/defendant to made 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 ex parte decree will be dismissed for non compliance of the said proviso to Section 17 of the Act. 2. Any application filed by the tenant/defendant to made 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 ex parte 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.” 13. In the case of Sri Panchayati Akhara Mahanirvani Vaidik Sanatan Bharti v. Ram Prakash Pathak and another, 2016(8) ADJ 514 (Paras.21 to 26), this Court held as under: “21. In the application for recall of ex parte decree, the applicant states that he came to know about the ex parte decree only on 26.7.2011 and thereafter on the legal advice of his counsel, he moved an application on 6.8.2012 for recall of the ex parte decree dated 9.12.2011 and further moved an application dated 14.8.2012 for condoning the delay in moving the said application. However, no application under Section 17 of the Act, 1887 was filed till 12.9.2012 when for the first time, the applicant-tenant pleaded that he was ready to furnish security in lieu of the decreetal money from March 2008 till September 2012. 22. The Judge Small Causes Court allowed this application on 17.7.2013 on the premise that the request to furnish the security could be accepted till the date of disposal of the application under Order IX Rule 13 C.P.C. It has failed to consider that under Aricle 123 of the Limitation Act, 1963, the application to set aside ex parte decree has to be moved within a period of 30 days from the knowledge of the decree. The delay, if any, in presentation of application under Order IX Rule 13 C.P.C. has to be explained in the application itself. 23. The delay, if any, in presentation of application under Order IX Rule 13 C.P.C. has to be explained in the application itself. 23. Moreover, as per proviso to Section 17 of the Act, 1887 the decreetal money has to be deposited by the applicant at the time of presentation of application for setting aside the ex parte decree or in alternative the application can be moved for furnishing security for the performance of the decree. That means the applicant who is seeking an order to set aside the ex parte decree has to deposit the decreetal money due from him in the Court within 30 days from the knowledge of the decree or move an application under the proviso to Section 17 of the Act, 1887 to furnish security for the performance of the decree. 24. It is a settled law that the provisions of Section 17 of the Act, 1887 are mandatory and non-compliance thereof would be fatal for the applicant who seeks for setting aside of the ex parte decree (Reference to “Kedar Nath” (supra). It is also settled that there is no provision under Section 17 of the Act, 1887 conferring power on the Court to condone the delay in compliance thereof. The provisions of Section 5 of the Limitation Act have no application and any delay in compliance of the proviso to Section 17 of the Act, 1887 cannot be condoned by the Court (Reference to “Raj Kumar Makhija” (supra). The applicant has no choice. In order to maintain the application for setting aside the ex parte decree, the applicant has to fulfill any of the alternative conditions provided in the proviso to Section 17 of the Act, 1887. 25. In case such a condition is not fulfilled, there cannot be any valid presentation of the application for setting aside the ex parte decree. If there is no valid presentation, the Court cannot assume jurisdiction. The question of entertaining application under Order IX Rule 13 C.P.C. for setting aside the ex parte decree goes to the root of assuming the jurisdiction by the Court. The Court cannot assume jurisdiction inasmuch as in absence of compliance of such condition, there is no application in the eye of law. The question of entertaining application under Order IX Rule 13 C.P.C. for setting aside the ex parte decree goes to the root of assuming the jurisdiction by the Court. The Court cannot assume jurisdiction inasmuch as in absence of compliance of such condition, there is no application in the eye of law. The object behind Section 17(1) of the Act is to protect the interest of the landlord from further harassment and to secure/ensure payment of rent and to put the unscrupulous tenant to term to deposit the rent due against him before giving the opportunity of asking for consideration of application for setting aside the ex parte decree. 26. In the instant case, admittedly the tenant did not move the application under proviso to Section 17 of the Act, 1887 for furnishing of security for a period of more than 30 days from the knowledge of the ex parte decree and moreover the application under Order IX Rule 13 C.P.C. was not accompanied by a deposit in the Court of the amount due from the applicant under the decree. There is no compliance of any of the conditions provided in the proviso to Section 17 of the Act, 1887 at all before moving the application under Order IX Rule 13 C.P.C. much less the substantial compliance by the applicant-tenant.” 14. Similar view was taken by this Court in Roshan Lal and others v. Rishi Pal Singh and others, 2013(1) ADJ 462 and Smt. Kusum Devi v. Ram Ji Verma, 2015(7) ADJ 796 . 15. The object behind Section 17(1) of the Act is to protect the interest of the landlord from further harassment and to secure/ensure payment of rent and to put the unscrupulous tenant to term to deposit the rent due against him before giving the opportunity of asking for consideration of application for setting aside the ex parte decree. 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 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 obligation of the applicant is to move a previous application for dispensation. It is then for the Court to make a prompt order. The applicant who is seeking an order to set aside the ex parte decree has to deposit the decreetal money due from him in the Court within 30 days from the knowledge of the decree or move an application under the proviso to Section 17 of the Act, 1887 to furnish security for the performance of the decree. The provisions of Section 17 of the Act, 1887 are mandatory and non-compliance thereof would be fatal for the applicant who seeks for setting aside of the ex parte decree. Any application filed by the tenant/defendant to made good the shortfall either in deposit or security after expiry of period of limitation is of no consequence. 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. There being no provision conferring power upon 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. However, Court may ignore the shortfall in deposit of a negligible amount on the principle of deminimis. 16. The question of entertaining application under Order IX Rule 13 C.P.C. for setting aside the ex parte decree goes to the root of assuming the jurisdiction by the Court. The Court cannot assume jurisdiction inasmuch as in absence of compliance of conditions of Section 17 of the Act 1887, there is no valid application in the eye of law. 17. In the present set of facts, the judgement-debtor/respondent No. 1 has filed application under Order IX Rule 13 C.P.C. on 21.8.2014 while application for seeking permission to furnish security towards decreetal amount, was filed much subsequently i.e. on 26.3.2015. The security was furnished on 4.7.2016. 17. In the present set of facts, the judgement-debtor/respondent No. 1 has filed application under Order IX Rule 13 C.P.C. on 21.8.2014 while application for seeking permission to furnish security towards decreetal amount, was filed much subsequently i.e. on 26.3.2015. The security was furnished on 4.7.2016. Thus at the time of or prior to submission of application on 21.8.2014 under Order IX Rule 13 C.P.C. to set aside the judgment dated 9.9.2011 and the decree dated 14.9.2011, neither the decreetal amount was deposited nor any security was furnished. No prior application as contemplated under Section 17 of the Act 1887 was filed by the defendant to dispense with the deposit and for leave to furnish security. Thus, the Court below was having no jurisdiction to entertain the application. 18. In view of the above discussion, I find that both the impugned orders suffer from manifest error of law and, therefore, deserve to be set aside. 19. In result, the petition succeeds and is hereby allowed. Impugned order dated 29.7.2016 in Misc. Case No. 60 of 2014 passed by the Judge Small Cause Court, Ghaziabad and the order dated 11.10.2017 in SCC Revision No. 25 of 2017 passed by the Additional District Judge, Court No. 7, Ghaziabad, are hereby set aside. The application under Order IX Rule 13 C.P.C. and delay condonation application being paper No. 3Ga and 5Ga stand rejected.