Smt. Kusum Devi vs Ram Ji Verma
2015 Latest Caselaw 1499 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
RESERVED
 

 
Case :- WRIT - A No. - 65573 of 2014
 

 
Petitioner :- Smt. Kusum Devi
 
Respondent :- Ram Ji Verma
 
Counsel for Petitioner :- Rajesh Kumar Singh
 
Counsel for Respondent :- N.K. Chaturvedi
 

 
Hon'ble Suneet Kumar,J.

The respondent/landlord filed a suit for eviction and arrears of rent before the Small Causes Court at Gorakhpur being Case No. 20 of 2005 (Ram Ji Verma vs. Smt. Kusum). The suit was decreed ex parte by judgment and order dated 28 August 2006. The petitioner made an application dated 19 October 2006 in terms of Order 9 Rule 13 along with delay condonation application. During pendency of the application, the petitioner moved an application (Paper No.63-Ga) under Section 17 of the Provincial Small Causes Court Act, 18871 on 3 September 2011 seeking permission of the court to deposit the decretal amount as per the decree. The trial court rejected the application moved under Section 17 of the Act, 1887 on 4 August 2012. The petitioner made another application for recall of the order which was rejected on 16 August 2013. Aggrieved, the petitioner preferred a revision before the Additional District Judge, Court No.2, Gorakhpur being Revision No.19 of 2013 (Smt. Kusum vs. Ram Ji Verma) which was dismissed on 10 September 2014. Aggrieved, the petitioner is assailing the aforementioned orders in writ jurisdiction.

At the very outset, learned counsel for the petitioner has very fairly conceded that in view of the judgement rendered by the Supreme Court in Radhey Shyam and another vs. Chhabi Nath and others2, no writ would lie against a judicial order arising out of civil proceedings. Learned counsel for the petitioner would contend that the issue raised in the petition goes to the root of the lis, therefore, the petition be heard under Article 227 of the Constitution, further, the learned counsel for the petitioner would confine his argument within the parameter of the said Article. I, accordingly, proceed to examine the submission of learned counsel for the petitioner under Article 227 of the Constitution.

Submission of learned counsel for the petitioner is that the court below committed an error in rejecting the application under Section 17 of the Act, 1887 without deciding the delay condonation application filed along with the application under Order 9 Rule 13. It is, therefore, contended that the application under Order 9 Rule 13 could not have been decided being barred by time, unless the delay was condoned. Upon condonation of delay the application under Section 17 of the Act, 1887 would thereafter mature for disposal.

In rebuttal, Shri N.K. Chaturvedi, learned counsel appearing for the respondent would contend that as per the scheme of Section 17 of the Act, 1887, the petitioner has to comply with the provisions of Section 17 of the Act, 1887 on the date of filing of the restoration application under Order 9 Rule 13 irrespective of the application being barred by laches. The trial court has not committed any illegality or infirmity in rejecting the petitioner's application.

It is not disputed by the learned counsel for the petitioner that the application under Order 9 Rule 13 was filed on 19 October 2006 to recall the ex parte judgment and decree dated 28 August 2006, no application for compliance in terms of Section 17 of the Act, 1887 was filed. The application under Section 17 was moved much later on 3 September 2011.

The question for determination is as to whether the application under Section 17 of the Act 1887 could have been maintained only after the application under Order 9 Rule 13 would have matured upon condonation of delay.

The Supreme Court in Kedarnath vs Mohan Lal Kesarwari and others3 held that proviso to Section 17 of the Act, 1887 is mandatory, an application seeking to set aside an ex-parte decree must be accompanied by a deposit in the court of the decretal amount. 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 to Section 17(1) of the Act, 1887 does not provide for the extent of time by which such application for dispensation may be filed. 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.

Section 5 of the Limitation Act reads as follows:

5. Extension of prescribed period in certain cases― Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.

On a plain reading of Section 5 of the Limitation Act, it would show that it will apply where an appeal or any application has been preferred beyond the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Thus, Section 5 of the Limitation Act would apply to only (1) appeal or (2) making the application.

It follows that it does not apply to a deposit. Proviso to Section 17 talks about filing of a previous application for furnishing security, previous to the application for setting aside the ex parte decree. Thus, the period of limitation for filing such application has been provided for under the said proviso. It was held that where the statute does not provide either for extension of time or to condone the default in depositing the rent within the stipulated period, the Court does not have power to do so. Where statute prescribes, specific period within which the deposit has to be made, provision of section 5 of the Limitation Act can not be extended where the default takes place.

There being no provision under section 17 of the Act for conferring power on Court to condone the delay in complying its conditions, it would not be correct to say that Section 5 of the Limitation Act would still be available to such person who has committed default in making the full deposit, and the Court can condone the delay in making the deposit.

In the case in hand, the application for setting aside ex parte decree was not accompanied by deposit 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 or allowed.

A Division Bench in Raj Kumar Makhija and others vs. M/s S.K.S. And Company and others4 was called upon to answer the following question of law :-

"Whether the proviso to Section 17 of the Provincial Small Causes Courts Act completely bars any rectification or removal of a bona fide error after the expiry of the period of limitation when substantial compliance by way of deposit of the decretal amount and furnishing security has been made within the period of limitation particularly when Section 5 of the Limitation Act, 1963 has been made applicable to order IX Rule 13 of the Code of Civil procedure?"

The Court in para-53 answered the question under reference in the following terms :

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 exparte 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.

The controversy involved in the case of Prem Chandra Mishra versus IInd Additional District Judge5 was with regard to grant of adjustment of the earlier deposits made by the tenant under sub section (4) of Section 20 & Section 30 of U.P Act No. 13 of 1972 and under Order XV, Rule 5 of CPC with respect to the deposit to be made under the proviso to Section 17 of the Act, The Court held that the tenant is entitled for the adjustment of the amount already deposited under the various provisions, referred to above.

Ultimately, it has been held that in case the amount so deposited is short, after taking into account the previous deposits the application will have to be necessarily dismissed being not competent and maintainable.

In the facts of the present case, there is no compliance, what to say of substantial compliance, of the proviso to Section 17 of the Act, 1887. The defendant-tenant had not deposited the amount nor furnished security towards the decretal amount on the date of the filing of the application under Order 9 Rule 13 for setting aside the ex parte decree or subsequent there to. The fact that the application was time barred is of no consequence as regard compliance of the terms contained in proviso to Section 17 of the Act 1887 which is mandatory and cannot be condoned, its compliance is sine quo non before the application of recall/review of the judgment & decree can be entertained.

In view of the legal position stated herein above, it leaves no room for doubt that view taken by the trial Court is justified. The argument of the respondent/landlord is well founded and deserves acceptance.

In such circumstances of the case, the Court in exercise of its jurisdiction under Article 227 of the Constitution of India is not inclined to interfere with the impugned order.

The writ petition being devoid of merit, is liable to be dismissed.

The writ petition is, accordingly, dismissed.

No order as to costs.

However, it is provided that in case the petitioner gives an undertaking on oath before the Court below that he shall vacate the premises in question and hand over the possession of the same peacefully to the respondent-landlord on or before 31 January 2016. The aforesaid undertaking on oath shall be given by the petitioner before the Court below within 10 days from today and the petitioner shall deposit the monthly rent of the premises in question before the Court below, as per the current rent fixed and shall continue to deposit the same by 7th of the each calendar month till the vacation of the premises in question, which amount may be permitted to be withdrawn by the respondent-landlord after due verification by the Court concerned.

It is made clear that in the event of default committed by the petitioner/tenant in any of the conditions, the order shall stand automatically vacated without reference to the Court.

Order Date :- July 28, 2015

Mukesh Kr.