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2022 DIGILAW 710 (ALL)

Sabir Ahmad v. Khali Ulla

2022-05-07

NEERAJ TIWARI

body2022
JUDGMENT : 1. Heard Sri Muktesh Kumar Singh, learned counsel for revisionists and Sri Pankaj Agarwal, learned counsel for opposite party. 2. Present revision has been filed challenging the order dated 09.03.2022 passed by District Judge, Aligarh in Misc. Case No. 340 of 2021 (Sabir Ahmad & another vs. Khali Ulla) arising out of S.C.C. Suit No. 22 of 2019 (Khali Ulla vs. Sabir Ahmad & another). 3. Learned counsel for defendants-revisionists submitted that SCC Suit No. 22 of 2019 has been filed claiming rent of Rs. 5,000/-per month. Defendants-revisionists could not receive summon, therefore, they were unable to appear before the Court below. Accordingly, the said suit was decreed ex-parte vide order dated 07.12.2020. It is next submitted that after knowing about the order dated 07.12.2020, defendants-revisionists have moved application under Order IX Rule 13 of CPC for recalling of ex-parte order dated 07.12.2020. It is also submitted that Section 17 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as ‘Act, 1887’) provides to deposit the decretal amount for setting aside the ex parte decree, therefore, defendants-revisionists have also deposited the said amount. It is next submitted that plaintiff-opposite party has also moved application for releasing of amount so deposited in his favour, upon which defendants-revisionists have filed objection dated 12.01.2022 with specific case that this amount can only be released after disposal of application filed under Order IX Rule 13 of CPC and not before that. Lastly, it is submitted that as per Section 17(2) of Act, 1887, as on date, defendants-revisionists are not liable to pay the amount and they would be liable only if application filed under Order IX Rule 13 of CPC is rejected. In support of his contention, he has placed reliance upon the judgment of this Court in the matter of Smt. Krishna Devi vs. Shobha Chandra; 1981 ALL. L.J. 989. Therefore, under such circumstances, impugned order is bad and liable to be set aside. 4. Per contra, Sri Pankaj Agarwal, learned counsel for opposite party submitted that recall application has been filed by the defendants-revisionists with specific case that rent of house in question is only Rs. L.J. 989. Therefore, under such circumstances, impugned order is bad and liable to be set aside. 4. Per contra, Sri Pankaj Agarwal, learned counsel for opposite party submitted that recall application has been filed by the defendants-revisionists with specific case that rent of house in question is only Rs. 200/-, therefore, in case of appearance of defendants-revisionists before the Court, they are required to fulfil the conditions of Section 20(4) of The U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ‘U.P. Act No. 13 of 1972’). He further submitted that Section 20(6) of U.P. Act No. 13 of 1972 provides that any amount so deposited by the tenant under sub-section (4) or under Rule 5 of Order XV of the First Schedule to the Code of Civil Procedure, 1908 (Act No. 5 of 1908) shall be paid to the landlord forthwith on his application without prejudice to the parties pleadings and subject to the ultimate decision in the suits. Court below has rightly released the amount so deposited in favour of landlord. In support of his contention, he has placed reliance upon the judgment of this Court passed in the matter of Prem Chandra Mishra vs. IInd Addl. District Judge, Etah and others; 2008 9 ADJ 13 . He lastly submitted that in the light of Sections 20(4) & (6) of U.P. Act No. 13 of 1972 read with Order IX Rule 13 of CPC and Section 17(1) of Act, 1887, there is no illegality in the impugned order, therefore, present revision is liable to be dismissed. 5. I have considered the rival submissions advanced by learned counsels for parties and perused the records, provisions of law as well as judgments relied upon. 6. Facts of the case are undisputed and only question which is to be decided is as to whether the amount so deposited in compliance of Section 17 of Act, 1887 along with application under Order IX Rule 13 of CPC be released in favour of landlord or not. 7. Before coming to any conclusion, it is required to reproduce Section 17 of Act, 1887. “17. 7. Before coming to any conclusion, it is required to reproduce Section 17 of Act, 1887. “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.] (2) Where a person has become liable as surety under the proviso to sub-section (1), the security may be realised in manner provided by section [145] of the Code of Civil Procedure, [1908 (5 of 1908)].” 8. From the perusal of language of Section 17 of Act, 1887, it is very much clear that though it was enacted to protect the interest of landlord, but the interest of tenant can also not be ignored. Therefore, in Section 17(2) of Act, 1887, it has been clearly held that where a person become liable as surety under the proviso to sub-section (1), the security may be realised. Application under Order IX Rule 13 of CPC has been filed to set aside the ex parte decree and to protect the interest of landlord, decretal amount has to be deposited. In case of allowing the application under Order IX Rule 13 of CPC and setting aside the ex parte, there would have no occasion for landlord to realise the security or encash the money so deposited. In case of rejection of application under Order IX Rule 13 of CPC, interest of landlord is protected and he may realise the amount so deposited. 9. This Court in the Smt. Krishna Devi (Supra) has taken the very same view. Relevant paragraph of the said judgment is quoted below :- “5. The second contention is without substance. In case of rejection of application under Order IX Rule 13 of CPC, interest of landlord is protected and he may realise the amount so deposited. 9. This Court in the Smt. Krishna Devi (Supra) has taken the very same view. Relevant paragraph of the said judgment is quoted below :- “5. The second contention is without substance. The amount deposited by the defendant and security furnished remained intact till such time that the ex-parte decree was not set aside. It is only after the ex-parte decree had been set aside that the amount and the security were withdrawn. Although the proviso has been incorporated in S. 17 to protect the interest of the decree holder, but its language does not justify the contention that the amount deposited or the security furnished should remain lying in the Court till such time that the suit is disposed of. The deposit and the security under the proviso have to remain intact during the pendency of the application for setting aside the ex parte decree. In case the application for setting aside the ex parte decree is dismissed the amount deposited will be adjusted towards the decree and the security furnished enforced for the same purpose. In the event of the decree being set aside the purpose of the deposit comes to an end. For there is no decree left to be satisfied and the defendant is free to withdraw this amount. Counsel urged that this Court had passed an order restraining the defendant from withdrawing the amount or the security at the time when this revision was admitted. Without deciding as to whether the defendant committed a breach of the direction of this Court, the withdrawal would not affect the validity of the application. For the deposit and the security have to be maintained in case where the application is allowed, only till such time that the application is not decided in favour of the defendant.” 10. Not only this, learned counsel for opposite party has placed reliance upon paragraph No. 18 of the judgment passed by this Court in Prem Chandra Mishra (Supra) in which the Court has taken the very same view. Relevant paragraph of the said judgment is quoted below:- “18. Not only this, learned counsel for opposite party has placed reliance upon paragraph No. 18 of the judgment passed by this Court in Prem Chandra Mishra (Supra) in which the Court has taken the very same view. Relevant paragraph of the said judgment is quoted below:- “18. The object behind proviso of Section 17(1) of Provincial Small Causes Courts Act, 1887 is that unscrupulous tenants against whom rent is due, who do not appear on the date fixed may not take advantage of not paying rent and thereby causing harassment of the landlord. The purpose of adding this proviso to Section 17 is to protect the interest of landlord from further harassment and to secure and ensure payment of rent and to put tenant to term to legally make said deposits. Idea behind said provision is to strike a balance between rival interests so as to be just law. In case of ex parte decree tenant has been given liberty to move application under Order IX Rule 13 of Code of Civil Procedure on the ground provided therein but under proviso to Section 17(1) of Provincial Small Cause Court Act, 1887 condition has been imposed so that tenant does not take undue advantage for non-appearance and in this background as condition precedent is it has been made obligatory on the part of the tenant to deposit the amount which is due so that in the even an application for setting aside decree is dismissed the decree in question may be satisfied from the amount deposited or from the security furnished by the judgment-debtor.” 11. Therefore, as provided in Section 17 of Act, 1887 as well as law discussed here-in-above, it is apparent that while framing Section 17 of Act, 1887, legislation was conscious enough to protect the interest of landlord as well as tenant. Section 17(1) of Act, 1887 provides for deposit of decretal amount before moving application under Order IX Rule 13 of CPC to protect the interest of landlord whereas Section 17(2) of Act, 1887 provides that only in case a person has become liable as surety, he may realise the money which protects the interest of tenant. Therefore, before decision upon the application filed under Order IX Rule 13 of CPC, if amount is released, that would frustrate the intention of legislation. Therefore, before decision upon the application filed under Order IX Rule 13 of CPC, if amount is released, that would frustrate the intention of legislation. In case money is released prior to the decision upon the application filed under Order IX Rule 13 of CPC, it may intend to multiplicity of litigation as in case of allowing the application, tenant would have no option but to initiate separate legal proceeding for recovery of the money so realised by the landlord. Therefore, during the pendency of application filed under Order IX Rule 13 of CPC, allowing the application of release of money is against the provisions of Section 17 of Act, 1887. 12. So far as compliance of Sections 20(4) & (6) of U.P. Act No. 13 of 1972 is concerned, in case of setting aside of exparte decree, it is open for SCC Court to ensure the compliance of necessary statutory provisions. In case of non-compliance of any provision, it is also open for the parties to move appropriate application before the SCC Court under the provisions of Rules and it is incumbent upon the SCC Court to decide the same in accordance with law. 13. Therefore, in light of observations made here-in-above, order dated 09.03.2022 passed by District Judge, Aligarh is hereby set aside. 14. Accordingly, Revision is allowed. 15. No order as to costs.