Prem Chandra Gupta And Another vs District Judge Barabanki And Anr.
2019 Latest Caselaw 5456 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 24
 

 
Case :- MISC. SINGLE No. - 2865 of 2019
 

 
Petitioner :- Prem Chandra Gupta And Another
 
Respondent :- District Judge Barabanki And Anr.
 
Counsel for Petitioner :- Sudeep Seth
 

 
Hon'ble Irshad Ali,J.

Sri Shreedhar Awasthi, learned Advocate has today filed Vakalatnama on behalf of the petitioners. The same may be taken on record.

Heard Sri Sudeep Seth, learned Senior Counsel assisted by Sri Shreedhar Awasthi, learned counsel for the petitioners.

Brief fact of the case is that one Gulab Devi filed Suit No.8 of 2012 against opposite party No.2 for ejectment and arrears of rent on 28.09.2012. During pendency of the suit she died and the petitioners being her son and daughter were substituted in the suit. The opposite party filed appearance in the matter but did not respond thereafter. A Writ Petition No.9301 (MS) of 2016 was filed before this Court for issuance of necessary direction to expedite the hearing of the suit. The writ petition was finally disposed of vide order dated 02.05.2016 with a direction to expedite the proceeding of the suit and to pass appropriate order within a period of 18 months.

In compliance of the order passed by this Court, an order was passed on 08.08.2017 in an ex-parte proceeding with a direction to vacate the premises and to pay arrears of rent within a period of one month. The opposite party No.2 filed SCC Revision No. Nill of 2018 before the District Judge. The District Judge passed an order on 23.11.2018, whereby direction was issued to comply with the provisions contained under Section 17 of the Provincial Small Causes Court Act. The petitioners moved an application for recall of the order dated 23.11.2018 passed by the District Judge on the ground that the provisions contained under Section 17 is mandatory to be complied with before filing the revision and the order passed by the District Judge is erroneous. The application for recall of the order was rejected vide order dated 17.01.2019. The petitioners have challenged the order of the District Judge dated 23.11.2018 and the order dated 17.01.2019 contained as annexure Nos.1 and 2 to the writ petition.

Assailing the impugned orders, submission of learned Senior Counsel for the petitioners is that the provisions in regard to deposit of decreteal amount is mandatory to be complied with prior to filing of the revision before the District Judge. The District Judge in a very haste and erroneous manner without perusal of the provisions has passed the impugned order, thus, the revision is not sustainable in law and the revision is liable to be dismissed.

He further submitted that the District Judge has committed manifest error of law in passing the impugned order. In support of his submission, he relied upon paragraph Nos.8 and 9 of a judgment in the case of Kedarnath Vs. Mohan Lal Kesarwari and others; (2002) 2 SCC 16. He further placed reliance upon paragraph Nos.1, 4, 5 and 6 of a judgment in the case of Dhanna Vs. Arjun Lal; AIR 1963 Raj 240. He further invited attention of this Court upon paragraph No.12 of the writ petition, wherein the provisions contained under Section 17 of the Provincial Small Causes Court Act are quoted.

In spite of notices issued to the opposite parties, no one is present before this Court on their behalf, therefore, in view of the provisions contained under High Court Rules, service of notice upon opposite parties is deemed to be sufficient and, therefore, this Court is proceeding to decide the writ petition finally.

Having heard the submissions advanced by learned Senior Counsel for the petitioners, I perused the material on record and the judgments relied upon.

To resolve the controversy involved in the matter, the provisions contained under Section 17 of the Provincial Small Causes Court Act is being quoted 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 21 [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 22 [145] of the Code of Civil Procedure, 23 [1908] (5 of 1908)."

On its perusal, it is evident on the face of it that the decreetal amount is to be deposited prior to filing of the SCC revision before the District Judge. The District Judge while passing the order has misconstrued and on erroneous assumption has passed the impugned order directing to deposit the decreetal amount by passing an order, which is impugned in the writ petition.

The judgment relied upon by learned Senior Counsel for the petitioners on the point are being quoted below:

(1) Kedarnath Vs. Mohan Lal Kesarwari and others (Supra):

"8. 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.

9. In the case at hand, the application for setting aside ex parte decree was not accompanied by deposit in the court 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 and allowed."

(2) Dhanna Vs. Arjun Lal; AIR 1963 Raj 240 (Supra):

"1. This is a revision application by the defendant against an ex parte decree passed by the Judge, Small Causes, Udaipur.

4. There was a conflict of authority in interpreting the proviso as it stood prior to the amendment. One view was that it was directory and another view was that it was mandatory. In making the amendment the Legislature has apparently adopted the latter view. The applicant applying for a review of judgment or for an order to set aside an ex parte decree must, at the time of presenting his application, do one of two things, namely, either deposit in Court the amount due under the decree or give such security for performance of the decree as the Court may have directed on a previous application made by him in this behalf. If he does not make the previous application, he must put in the decretal amount in full. If he has made the previous application and succeeded in getting an order for security, he can, instead of depositing the decretal amount, furnish the security directed by the Court. It is no longer open to the Court to extend the time within which the deposit is to be made or the security furnished.

5. In the present case an application for setting aside the ex parte decree was moved within time. But the applicant did not either deposit in Court the amount due under the decree or obtain the order of the Court for giving security for the performance of the decree within the period of limitation. The Court had no alternative but to dismiss his application.

6. The revision application is accordingly dismissed. In the circumstances of the case, I direct that parties shall bear their own costs of this application."

In the present case also, the revision was filed for setting aside the ex-parte decree but the revisionist did not either deposit the amount due under the decree nor obtained the order of the Court for giving security for performance of the decree within the period of limitation. Therefore, in the opinion of this Court, the revisionist - opposite party has not complied with the mandatory provisions contained under Section 17 of Provincial Small Causes Court Act. Thus, the order passed by the District Judge is erroneous and cannot be sustained. Therefore, the submission advanced by learned Senior Counsel for the petitioners and the judgments relied upon fully support the argument advanced.

In view of the above, the impugned orders dated 23.11.2018 and 17.01.2019 suffer from apparent error of law and are hereby set aside.

The writ petition succeeds and is allowed.

Consequences shall follow.

No orders as to costs.

Order Date :- 4.7.2019

Adarsh K Singh