Nisar Ahmad & Anr vs A.D.J Court No. 2 Barabanki & Ors
2019 Latest Caselaw 925 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

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

 
Case :- MISC. SINGLE No. - 17222 of 2017
 

 
Petitioner :- Nisar Ahmad & Anr
 
Respondent :- A.D.J Court No. 2 Barabanki & Ors
 
Counsel for Petitioner :- Farooqahmad,Rahmatullah Khan
 
Counsel for Respondent :- Aftab Ahmad
 

 
Hon'ble Irshad Ali,J.

Heard Sri Farooq Ahmad, learned counsel for the petitioners and to Sri Aftab Ahmad, learned counsel for respondent No.3.

The dispute in the present writ petition is that the petitioners are tenant in the shop of respondent No.3 on monthly rent of Rs.300/- and is running a tea shop since year 1993. After notice to the petitioners under Section 106 of Transfer of Property Act, a suit was filed before the Judge Small Causes Court, which was numbered as Suit No.1 of 2008 for ejectment and arrears of rent and damages. The suit was decreed vide judgment and decree dated 02.05.2009. The petitioners moved an application under Order 9 Rule 13 of CPC along with application for condonation of delay under Section 5 of Limitation Act for showing the reasons for delay occasioned in filing the application.

An objection was filed by the plaintiff to the application moved under Order 9 Rule 13 CPC and thereafter, the matter was heard on the point of exparte judgment and decree vide order dated 01.12.2015 and the application moved by the petitioners was rejected.

Against the order passed by the Judge Small Causes Court, Revision No.4 of 2017 was filed, which has also been rejected vide order dated 19.07.2017 by recording specific finding that without depositing the decreetal amount, the application under Order 9 Rule 13 CPC is not maintainable.

Against the said orders dated 19.07.2017 and 01.12.2015, the petitioners preferred the present writ petition before this Court.

Submission of learned counsel for the petitioners is that the suit filed for ejectment and arrears of rent was not maintainable in view of the fact that notice required under Section 106 of Transfer of Property Act was not served upon the petitioners and without affording opportunity to the petitioners to file their defense, the suit was decreed ex parte.

He next submitted that non deposit of decreetal amount is not fatal, therefore, the trial Court as well as the revisional Court should grant opportunity to the petitioners to deposit the same and then to proceed to decide the application filed under Order 9 Rule 13 CPC in accordance with law. Therefore, his submission is that both the courts below have committed gross illegality in rejecting the claim of the petitioners.

On the other hand, learned counsel for respondent No.3 submitted that there is no illegality in the impugned orders passed by both the Courts below. The deposit of decreetal amount for consideration of application under Order 9 Rule 13 CPC is mandatory in nature. Therefore, both the orders impugned do not suffer from any infirmity or illegality and submitted that the writ petition being devoid of merit is liable to be dismissed. In support of his submissions, he placed reliance upon the following judgments:

i) Kedarnath Vs. Mohan Lal Kesarwani and others; 2002 (1) AWC 502 (SC), paragraph No.8.

ii) Smt. Kusum Devi Vs. Ram Ji Verma; 2015 (112) ALR 295, paragraph Nos.7, 10 and 11.

Having heard the rival contentions advanced by learned counsel for the parties, I perused the material on record and the law reports relied upon by learned counsel for the respondent.

The proviso to Section 17 of Provincial Small Causes Courts Act, 1887 prescribes that deposit of decreetal amount is mandatory while moving an application seeking to set aside the exparte decree. Section 17 of the Act of 1887 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 2 [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 3[145] of the Code of Civil Procedure, 4[1908 (5 of 1908)]".

Hon'ble Supreme Court in the case of Kedarnath (Supra) while considering Section 17 of the Provincial Small Causes Court Act, 1987 has recorded following finding in paragraph 8 of the judgment:

"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."

The judgment of Hon'ble Supreme Court was followed by this Court in the case of Smt. Kusum Devi (Supra), wherein this Court has held as under:

"7. 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.

10. 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.

11. 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."

On perusal of the paragraphs referred herein above, it is well established that while moving an application for setting aside the ex parte decree under the provisions of Section 17 of the Act of 1987, the decreetal amount is mandatory to be deposited. The trial Court as well as the revisional Court while recording the finding in this regard has committed no error in law.

On over all consideration of the material and the judgments relied upon, this Court is of the opinion that both the Courts below have not committed any error in law. The deposit of decreetal amount is mandatory while moving an application for recall of the exparte judgment and decree.

In view of the above, the writ petition lacks merit and is hereby dismissed.

Order Date :- 11.3.2019

Adarsh K Singh