Kamal Kumar Gupta vs Ajay Kumar Gupta
2022 Latest Caselaw 16612 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved : 23.09.2022
 
Delivered : 11.11.2022
 
Court No. - 18
 

 
Case :- S.C.C. REVISION No. - 215 of 2014
 

 
Revisionist :- Kamal Kumar Gupta
 
Opposite Party :- Ajay Kumar Gupta
 
Counsel for Revisionist :- T.A. Khan
 
Counsel for Opposite Party :- Manish Goyal, Akanksha Sharma
 
WITH
 
Case :- S.C.C. REVISION No. - 245 of 2014
 

 
Revisionist :- Kamal Kumar Gupta
 
Opposite Party :- Ajay Kumar Gupta
 
Counsel for Revisionist :- T.A. Khan
 
Counsel for Opposite Party :- Akanksha Sharma
 
AND
 

 
Case :- S.C.C. REVISION No. - 246 of 2014
 

 
Revisionist :- Ajay Kumar Gupta
 
Opposite Party :- Kamal Kumar Gupta
 
Counsel for Revisionist :- Manish Goyal,Akanksha Sharma
 

 

 
Hon'ble Ajit Kumar,J.

1. Heard Sri T.A. Khan, learned Advocate appearing for the revision applicant in S.C.C. Revision Nos. 215 of 2014 and 245 of 2014 and Sri Manish Goyal, learned Senior Advocate assisted by Ms. Akanksha Sharma, learned counsel for the revision applicant in S.C.C. Revision No. 246 of 2014.

2. All these three revisions arise out of suit proceedings of S.C.C. Case No. 11 of 2011. The S.C.C. Revision No. 215 of 2014 have been filed by Kamal Kumar Gupta, tenant of plaintiff/ respondent Ajay Kumar Gupta challenging the order passed by Judge, Small Causes dated 02.04.2014 rejecting the miscellaneous application filed by the petitioner bearing paper no. 41, whereby, he had sought further time to permit him to deposit the remaining amount as per order passed on 27.02.2014 maintaining application under Order IX Rule 13 of Code of Civil Procedure, 1908 (hereinafter to be referred as 'CPC') and allowing the same by the order.

3. The S.C.C. Revision No. 245 of 2014 has been filed again by Kamal Kumar Gupta, the tenant challenging the order dated 06.03.2014 rejecting the miscellaneous application no. 2 of 2013, whereby, he had prayed for extension of time granted earlier by the court on 27.02.2014.

4. S.C.C. Revision No. 246 of 2014 has been filed by the landlord Ajay Kumar Gupta challenging the order dated 27.02.2014, whereby, the application of the tenant filed under Order IX Rule 13 CPC was allowed at a cost of Rs. 500/- by setting asiding the ex parte judgment and decree dated 23.08.2012.

5. The controversy therefore, in the above three S.C.C. revisions centres around the maintainability of miscellaneous application of the applicant to deposit the decretal amount which is mandatorily required under Section 17 of the Provincial Small Cause Courts Act, 1887 (hereinafter to be referred as 'Act, 1887') in order to maintain an application under Order IX Rule 13 CPC for setting asiding the ex parte judgment and decree and if allowed and maintainability of time extension application. I proceed to decide all the three revisions by this common order.

6. Before I proceed to examine the legal aspects, I find it necessary to refer to certain facts of the case in hand. The landlord/ respondent Ajay Kumar Gupta (hereinafter referred as 'landlord) instituted a Small Cause Suit being S.C.C. Case No. 11 of 2012 for recovery of arrears of rent and ejectment of Kamal Kumar Gupta (hereinafter referred as 'tenant'). This suit stood decreed by an ex parte judgment and decree dated 23.08.2012. The tenant moved an application under Order IX Rule 13 CPC on 16.11.2012 and the same day he moved an application that he may be permitted to deposit security against the decretal amount that was Rs. 3,25,000/-. The said application filed under proviso to Section 17(1) of the Act, 1887, was contested by the decree holder-landlord by moving objection on 12.03.2013. The trial court having considered the miscellaneous application filed by the petitioner under Order IX Rule 13 CPC along with an application filed under proviso to Section 17(1) of Act, 1887 on merits and having discussed the law on the point and meeting the arguments raised by respective parties, allowed the application filed under Order IX Rule 13 CPC at a cost of Rs. 500/- and directed for payment of remainder amount of decree i.e. Rs. 24,287/- along with Rs. 500/- within a week. It is worth noticing here that the petitioner had deposited the entire decretal (cash and security) amount except for Rs. 24,287/- that was argued and held to be due towards expenses of execution as per cost mentioned therein.

7. It appears that the petitioner could not deposit the above amount as directed by the trial court under order dated 27.02.2014, so he moved a miscellaneous application to extend time of one week provided under order dated 27.02.2014 and the said application came to be rejected with one line order that time extension prayed for cannot be allowed. The second miscellaneous application was accordingly moved by the petitioner which was registered as Paper No. 41 and that came to be rejected on the ground that earlier the court had already rejected a miscellaneous application of similar kind and therefore, a subsequent application was barred by principle of res judicata. While this order was challenged in Revision No. 215 of 2014, the petitioner also challenged the order dated 06.03.2014 rejecting the initial miscellaneous application seeking extension of time provided in the order dated 27.02.2014. This revision was also defective being no. 79 of 2014.

8. In the meanwhile, while these two revision petitions were pending, the landlord also filed a time barred revision being defective no. 83 of 2014 against the order dated 27.02.2014. In both revision petitions being defective and numbered as S.C.C. Revision No. D-79 of 2014 and D-83 of 2014, miscellaneous applications filed under Section 5 of Indian Limitation Act, 1963 have been later on allowed and so consequently the revision petitions became regular revision petitions and were allotted regular numbers as S.C.C. Revision No. 245 of 2014 and S.C.C. Revision No. 246 of 2014 respectively.

9. Having gone through the facts as discussed above, I find the order passed by the trial court in Revision No. 245 of 2014 dated 06.03.2014 to be the crucial order.

10. The argument advanced by learned counsel for the revision petitioner/ tenant is that in the first instance, the order passed on 06.03.2014 rejecting the miscellaneous application of the petitioner was a cryptic and non speaking order and the language in which it is couched, it indicates absolute non application of mind by the Presiding Judge. It is worth noticing that until 06.03.2014 landlord had not challenged the order dated 27.02.2014 and he chose to file objection to the miscellaneous application seeking extension of time by the tenant in preference to the challenge to the order passed by the trial court on 27.02.2014. The other argument advanced by learned counsel for the petitioner is that once the application under Section 17(2) of Act, 1887 stood granted and petitioner had deposited maximum of the decretal amount, the court ought to have exercised its inherent power under Section 151 CPC to extend the time granted under the order dated 27.02.2014 to deposit the amount. It is argued by learned counsel for the petitioner that it was only a bonafide request to extend the time because out of Rs. 3,25,000/-, Rs. 3 lacs were already deposited and the remaining amount could not have been deposited because he has been out of station and therefore, in such circumstances in order to advance the cause of justice the inherent power under Section 151 CPC to extend time should have been exercised. He has further relied upon a judgment of Division Bench of this Court in the case of Raj Kumar Makhija & Ors v. S.K. and Co. & Ors, wherein the court while upholding the view of learned Single Judge that section 17(1) of Act, 1887 was mandatory, no subsequent application would be maintainable but in the event maximum decretal amount has been deposited in compliance of Section 17 of Act, 1887, a miscellaneous application by the tenant to make good the short fall of the negligible amount on the principle of deniminis can be allowed. He has also relied upon the judgment of Supreme Court in the case of Kedar Nath v. Mohan Lal Kesarwani, 2002 (1) ARC to justify maintainability of miscellaneous application to deposit the security at the time of moving an application under Order IX Rule 13 CPC.

11. Per contra, Sri Manish Goyal, learned Senior Advocate while questioning the order dated 27.02.2014 has placed three fold submissions: (i) Miscellaneous application under proviso to Rule 17(1) of Act, 1887 is meant only for the purpose of deposit of security, otherwise, the decretal amount has to be deposited at the time of filing of miscellaneous application under Order IX Rule 13 CPC as a mandatory requirement of pre-requisite to make such an application in view of the proviso to sub section (1) of Section 17 of Act, 1887; (ii) any miscellaneous application seeking time to deposit the decretal amount may be residuary amount, after deposit of the security, would not at all be maintainable and therefore, since the petitioner did not comply with the mandatory requirement of law under Section 17 of Act, 1887, the application under Order IX Rule 13 CPC automatically stood dismissed, the order dated 27.02.2014 being conditional one; and (iii) the security in terms of personal bond by means of an affidavit not being a registered document of security and not filing of an agreement for sale in original, would not amount to security within the meaning of proviso to Section 17(1) of Act, 1887 and therefore, the court was not justified in passing the order dated 27.02.2014.

12. Having heard learned counsel for the respective parties and their arguments raised across the bar and having perused the records and the orders challenged in three revision petitions, I find the issue that requires consideration are (i) as to whether the tenant could have maintained an application for seeking time to submit security while presenting an application under Order IX Rule 13 of CPC and which he had submitted also and so whether the order dated 27.02.2014 is justifiable; (ii) as to whether an application further seeking extension of time originally granted under Order dated 27.02.2014 was sustainable: and (iii) whether personal bond and affidavit as surety was required to be registered and the security by way of photocopy of agreement for sale was sufficient?

13. In so far as the application subsequent to the order dated 06.03.2014 has been rejected on the principle of res judicata, I am of the considered view that in the circumstances when order dated 06.03.2014 itself has been challenged, I need not go into that question. If the order dated 06.03.2014 is maintained, a subsequent application for the same relief would itself fall on the ground.

14. Now coming to the first issue that is with regard to maintainability of petitioner's application under proviso to Section17(1) of deposit of security at the time of moving an application under Order IX Rule 13 C.P.C., I consider it to be more appropriate to refer to the very provision itself at this stage to appreciate the mandate contained under the said provision. Section 17 of the Act, 1887 runs as under:

"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 security 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)."

(Emphasis added)

15. A bare reading of the aforesaid provision makes it explicit that the procedure prescribed under C.P.C. has been made applicable to the suit proceedings of Court of Small Causes and also in all proceedings arising out of such suit proceedings except where otherwise provided by the Code or under the Act. The legislature very consciously added proviso to sub Section (1) of Section 17 carving out an exception in terms of word 'otherwise' where a miscellaneous application is filed to set aside a decree passed ex parte or for review of the judgment. The proviso mandates that while presenting such a miscellaneous application or a review application, at the time of such presentation the amount due from the judgment debtor  pursuant to the judgment and decree is to be deposited or alternatively will give such security for performance of the decree or compliance of the judgment, as the court may direct on an application previously filed in that behalf. So the proviso lays down three conditions to maintain an application under Order IX Rule 13 C.P.C.:

"(a) decretal amount to be deposited at the time of presentation of application;

(b) even security in lieu of the decretal amount for the performance of decree or compliance of judgment can be filed; and

(c) in the event judgment debtor wants to submit security in place of cash, he needed to obtain an order in that behalf from the concerned court but application for the same must be filed previously. In order to submit security, the court will have to pass an order on an application, if previously filed."

16. In the case of Kedar Nath (supra) a two judges bench of Supreme Court had the occasion to deal with the provision contained under Section 17 of Act, 1887, wherein the controversy had arisen for non deposit of the decretal amount at the time of presentation of an application under Order IX Rule 13 C.P.C. In that case no application was even filed seeking time for purpose of submitting security in lieu of cash deposit of decretal amount. In that case the miscellaneous application was filed on 15.10.1998 regarding permission to furnish security for the payment of decretal amount and the plea taken was that the Advocate did not advise the party to deposit the decretal amount as the learned Advocate himself was not aware of the relevant provision of law and then another plea was taken that the landlord had already been paid the rent and so there was no arrears required to be deposited. Yet another plea, quite contradictory to the other pleas taken, was that Advocate had advised him that once the application would be allowed setting aside the ex parte decree, he would have an opportunity to deposit the amount on the date of first hearing. The learned Judge, Small cause in that case dismissed the application filed by the tenant taking the view that ignorance of law was not excusable and so the application under Order IX Rule 13 CPC was also rejected. The said order was challenged in revision before the Additional District Judge, who allowed the same directing the trial court to accept the security and decide the application under Order IX Rule 13 CPC on merits. The said order was unsuccessfully challenged before this Court by the landlord vide application under Article 226/227 of the Constitution. 

17. In order to appreciate the spirit behind the incorporation of Section 17(1) originally in the statute and the substantive change that it has undergone subsequently by the Amending Act of 1935, the court found it proper to refer to the objects and reasons of 1935 amendment. The court appreciated the objects and reasons of the amending Act of 1935 wherein it was stated that "the Act is intended to make it clear that the preliminary application to ascertain what security will satisfy the court must be made and decided before the substantive application for the order to set aside the decree ...... "

18. The Supreme Court then proceeded to observe that the object behind the establishment of Small Cause Court conferring with the jurisdiction to try certain category of cases summarily, was to secure an expeditious disposal and curtail the lengthy procedure of litigation under ordinary civil law. The Court further observed that the manner in which scope of an application to recall an ex parte judgment and decree or to file a review, has been further clarified and narrowed down by imposing condition to make deposit of decretal amount or security for performance of contract thereof, such a provision absolutely fits in in the scheme of Act, 1887. The Court refers to various judgments of this Court and then proceeded to interpret the provision vide paragraph no. 9 thus:

"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."

19. The interpretation as made by the Supreme Court clarifies that an application for dispensation of deposit of decretal amount with a permission to submit security can be presented at any time (but) up to the time of presentation of application for setting aside such an ex parte decree or review and such an application would be a previous application for dispensation and then court shall have to pass an order.

20. This above judgment came to be further reconsidered by the another bench of two judges in Subodh Kumar v. Shamim Ahmed, 2021 SCC Online SC 164. In the said case vide paragraph no. 20 the court framed as many as five questions for consideration and to be answered. Paragraph no. 19 of the judgment runs as under:

"19. From the submissions of the learned counsel for the parties and materials on record, following issues arise for consideration in this appeal:

1)Whether in the application filed by the respondent tenant under Order 9 Rule 13, CPC on 25.08.1998, the requirements as contained in Proviso to Section 17 of the Provincial Small Cause Courts Act, 1887, were complied with?

2)Whether the respondent tenant had deposited the entire amount due on 25.08.1998 under Section 30(2) of U.P. Act No.13 of 1972?

3) Whether the deposit of rent under Section 30(2) of the U.P. Act No.13 of 1972 in the present case can be treated to be deposited under proviso to Section 17 of Act, 1887?

4)Whether the respondent tenant has made sufficient ground to allow the application filed under Order 9 Rule 13 CPC dated 25.08.1998?

5)Whether the High Court is right in its view that the trial court and the Revisional Court has taken a hyper technical and pedantic approach while considering the application under Order 9 Rule 13 CPC and Section 5 of the Limitation Act filed by the respondent?

21. For the purpose of decision upon issues involved in the present case, the question numbers, 1, 2 & 3 are relevant. In this case also the Court reproduced Section 17 of the Act, 1887 and then vide para 22 held thus:

"22. Proviso to Section 17 has been engrafted with the object that unscrupulous tenants who do not appear in the Court in the suit proceedings should not be allowed to file the application to recall exparte decree unless they deposit the entire amount or give security to the Court for compliance of the decree. The proviso is to take care of those tenants who deliberately do not appear in the suit neccesiating the Court to pass exparte decree. The object is to protect the landlord and to ensure that the decree passed is satisfied by the tenant, in event, the application under Order 9 Rule 13 is ultimately rejected. Proviso gives two options to an applicant against whom an exparte decree has been passed or who applied for review of the judgment, i.e., (a) deposit in the Court the amount due from him under the decree or in pursuance of the decree; (b) give such security for the performance of the decree or compliance with the judgment as the Court made on the previous application made by him in this behalf directed. Thus, requirement of the deposit in the court the entire amount can be waived only when the Court on the previous application directs the tenant to give such security for performance of the decree or compliance with the judgment. The application seeking waiver from deposit has been mentioned as "a previous application" i.e. previous to the application filed under Order 9 Rule 13."

22. Vide paragraph no. 24 of the judgment the Court reproduced certain paragraphs of the judgment of Kedar Nath and then also the ratio part of the judgment of Kedar Nath as I have reproduced herein this judgment. The Court completely agreed with the view taken in the case of Kedar Nath in order to find answer to the question framed in the judgment and vide paragraph no. 42 held thus:

42. In view of the foregoing discussions, our answer to question Nos. 1 ,2 and 3 are as follow:

1) In the application filed by the tenant on 25.08.1998 under Order 9 Rule 13, there was no compliance of Section 17 of 1887 Act and the application was incompetent.

2) The respondent tenant had not deposited the entire amount due on 25.08.1998 even under Section 30(2) of Act No.13 of 1972.

3) The deposit of rent under Section 30(2) of the Act No.13 of 1972 in the present case can not be treated to be deposit for the purposes of proviso under Section 17 of the Act, 1887."

23. The Court in the case of Subodh Kumar has referred to one fact that SCC case was ex parte decreed on 31.03.1998, whereas an execution application to execute the decree was filed on 27.07.1998, and the tenant though moved an application under Order IX Rule 13 CPC on 25.08.1998 along with an application under Section 5 of Indian Limitation Act, 1963 but neither any deposit was made by the tenant as required under Section 17 of Act, 1887, nor any application was filed as per proviso to Section 17(1). The first application filed on 27.07.2002 to treat the deposit already made under Section 30 as a deposit under Section 17 of Act, 1887. This application was contested by the landlord and his objection was upheld and application under Order IX Rule 13 CPC was rejected and so also the application filed under section 5 Limitation Act, 1963 against which revision was also dismissed but the tenant succeeded in getting writ petition allowed by the High Court. The matter was remanded for the trial court to pass order afresh reconsidering the tenant's application under Order IX Rule 13 CPC and section 5 application strictly in accordance with law.

24. The Supreme Court found the interference by the High Court to be totally uncalled for and confirmed the judgment and order passed by the trial court affirmed in revision by holding vide paragraph nos. 44, 45, 46 & 47 thus:

"44. We have noticed above that prior to exparte decree dated 31.03.1998, trial court had already passed two orders to proceed exparte on 24.02.1997 and 18.03.1997. The tenant respondent had filed an application 44Ga to recall the orders dated 24.02.1997 and 18.03.1997 which applications were rejected on 16.05.1997. While rejecting the application 44Ga filed by the tenant to recall the exparte order. Following was said by the trial court while rejecting the application:

"...The defendant wants to delay the case regularly because he is a tenant and getting benefit from the property. The application is based on malafide. The defendant is failed to explain any legal and genuine cause for his absence. It is not reasonable to grant any other opportunity. The application is rejected. The plaintiff present his exparte evidence on 25.05.1997."

45. The tenant's application to recall the exparte order was rejected by recording the findings as noted above. The trial court while rejecting the application under Order 9 Rule 13 has considered the entire sequence of events and facts. The trial court while rejecting the application under Order 9 Rule 13 vide its order dated 19.04.2007 has recorded categorical finding that there is no compliance of proviso to Section 17, the decretal amount having not been deposited at the time of filing application under Order 9 Rule 13.

46. We may also notice the order of the District Judge by which he rejected the revision petition filed by the tenant against the order dated 19.04.2007. District Judge in judgment noted that the tenant was provided with several opportunities to file written statement.

47. We are, thus, of the considered opinion that there was no valid ground on which the High Court could have interfered with the order of the trial court rejecting the application under Order 9 Rule 13 filed by the tenant to recall the exparte decree. We may further hold that even in the case where there is a compliance of proviso to Section 17, the application filed under Order 9 Rule 13 to set aside the decree passed exparte or for review of the judgment cannot be automatically granted. The compliance of proviso to Section 17 is a Pre condition for maintainability of application under Order 9 Rule 13. Application under Order 9 Rule 13 can be allowed only when sufficient cause is made out to set aside the exparte decree. The present is a case where no sufficient cause was made out to set aside the exparte decree.

25. In view of the two judgments of the Supreme Court in the case of Kedar Nath (supra) and Subodh Kumar (supra) the two unquestionable postulates emerged for maintaining an application under Order IX Rule 13 CPC: (a) the parties seeking recall of an order under Order IX Rule 13 CPC shall have to make deposit of the decretal amount or in the alternative shall have to make deposit of security as may be directed; and (b) in order to seek dispensation of deposit of decretal amount in cash a party shall have to move an application seeking such dispensation from the court concerned prior to the filing of an application under Order IX Rule 13 CPC or at least till the time of filing of an application under Order IX Rule 13 CPC. The aims and and objects that have been referred in the judgment of Kedar Nath reiterated in the case of Subodh Kumar would go on to show the intendment of the legislature that even an application filed at the time of presentation of application under Order IX Rule 13 or an application for review would be equally maintainable and be taken as an application previously filed, but in no case an application subsequently filed seeking dispensation for deposit of cash or partly by way security and partly in cash in terms of performance of judgment and decree, would be maintainable.

26. In the case in hand application under Order IX Rule 13 C.P.C. was moved by the petitioner on 09.11.2012, he had also moved a miscellaneous application for permission to submit security in part and cash in part for performance of judgment and decree under proviso to Section 17(1) the same day i.e. 09.11.2012.

27. Thus, in my view the application filed by the petitioner seeking order of the court to deposit 50% of the decretal amount in cash and security towards remaining 50% was fully maintainable being an application previously filed for consideration of the court in the light of ratio laid down in the judmgent of Kedar Nath reiterated in Subodh Kumar. Thus the first question stands answered in favour of the petitioner.

28. To find answer to the second question again coming to the facts of the present case, I find that while an application under Order IX Rule 13 CPC was moved by the tenant on 09.11.2012, he had also moved an application for dispensation as prescribed for under the proviso to section 17(1) of Act, 1887 seeking permission to submit security against 50% of the amount under the decree and 50% in cash. This application was allowed the same day giving three days' time to the tenant to do the needful under proviso to Section 17(1) as amended to maintain application under Order IX Rule 13 CPC. The petitioner moved an application again bearing paper no. 10-C that he may be permitted to deposit Rs. 25,000/- through tender and further time to deposit the remaining amount in cash which was allowed on 23.11.2012 itself directing him to deposit the entire amount by 29.11.2012. The court on 29.11.2012 recorded that a tender of Rs. 1,62,500/-  had been placed which was approved, but the amount did not count to 50%, however, the court refused to accept tender and issued direction that in all circumstances, the entire money should be deposited which was required to be deposited by 06.12.2012. The time was further extended on 14.12.2012 and then till 04.01.2013 vide order dated 21.12.2012. The security and the tender was finally accepted on 04.01.2013 and the matter was placed for further orders on 11.01.2013. The Court in its order dated 23.11.2013 recorded satisfaction regarding deposit of security and the amount of tender to the tune of Rs. 2,75,000/- vide paper no.29-C. However, plaintiff's counsel disputed the amount to be 50%. The court permitted him to file objection and it was observed that at the time of passing of the disposal order qua application under Order IX Rule 13 CPC, the above objection of not proper compliance of Section 17 of Act, 1887 in terms of 50% by cash as was ordered, would be considered.

29. It is thereafter, that the court proceeded to pass final order under Order IX Rule 13 CPC along with an application at the cost of Rs. 500/- directing the petitioner to deposit Rs. 500/- towards cost and further Rs. 24,287/- as the remainder amount. In the said judgment the Court held that Rs. 2,75,000/- was accepted in cash through tender while for remaining amount of Rs. 2,75,000/- security was accepted on 23.01.2013.

30. According to the plaintiff, till 19.11.2012 Rs. 7,03,287/- was due to be paid to him by the tenant but the tenant had deposited only Rs. 5.5 lacs inclusive of security. The court observed that the decree that was passed was for Rs. 3 lacs for arrears of rent between 01.01.2011 and 31.12.2011 and a further deposit of Rs. 25,000/- was directed to be made for the period between 28.02.2012 to 12.03.2012 and then that he would continue to pay such monthly rent against use and occupation of the building. The court therefore, held that maximum amount to be paid was Rs. 2,25,000/- as on 19.11.2012 and the petitioner had already performed decree for Rs. 5,50,000/- both by way of cash deposit and security, so there was no short fall. The Court further held that the question as to validity of the personal bond and security submitted was not raised while it was being accepted and only short fall was to be examined and so such an objection was unsustainable. The Court further proceeded to hold that as per the final decree the petitioner was to deposit Rs. 49,287/- towards expenses for the execution of the decree etc., and if this amount is included it comes to Rs. 5,74,287/- and so only Rs. 24,287/- should be the short fall.

31. Thus, from the above, it is clear that there was an application already filed by the petitioner to deposit the amount partly in security and partly in cash and that the aims and objects behind the amendment Act of 1935 was to dispose of such an application to satisfy the compliance of the proviso to Section 17(1) in the first instance before application under Order IX Rule 13 CPC is decided. So if the court in the instant case disposed of the said application vide order dated 19.11.2012, a further extension of time, if granted by the court to permit the tenant to deposit the amount and the security, it would be an exercise of power within the meaning of section 151 CPC. Section 151 CPC is an inherent power of the court and its exercise is fully saved by Section 17 of Act, 1887 as there is no such rider further in the entire Act, 1887 which would curtail the inherent power of the Civil Court under Section 151 CPC. Section 151 CPC is reproduced hereunder:

"Section 151 - Saving of inherent powers of Court.

Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."

32. A bare reading of provision makes it clear that the court has inherent power to exercise notwithstanding any provision contained under the Act, to advance the cause of justice. Granting extension of time by exercising power under Section 151 CPC has to be of course, judicious enough. In the facts and circumstances of the case in hand, I find that the court has safeguarded the interest of the landlord by first ensuring that the deposit was made in terms of order of the court dated 03.11.2012 passed on an application presented by the petitioner at the time of presenting application under Order IX Rule 13 CPC.

33. Now once the application has been held to be maintainable, the miscellaneous application to seek extension of time by itself will not be bad so long as the request is bonafide one. It is a case where I find that a huge amount was required to be deposited and within a period of three months' time not only the cash deposit was made of Rs. 2,75,000/- but even the security was submitted. So request or prayer for extension of time by means of miscellaneous application dated 19.11.2012 and 21.01.2013 would not be vitiated for any malafides and the exercise of power by the court to extend time would fall well within its inherent power under Section 151 CPC.

34. So the second question also stands answered in favour of the tenant.

35. To the third question as to the validity of the security bond not being registered one, I find that no such objection was raised at the time of surety bond being submitted and then accepted. The objection that was raised, was that the deposit made in cash was less than 50% and the trial court had directed that to be considered at the time of disposal of application under Order IX Rule 13 CPC. Thus, while the issue of short fall in the deposit of 50% on cash was pending consideration, there was no challenge to the security. In the affidavit that has been filed by the landlord in support of revision petition filed under Section 25 of Act, 1887 nowhere such an objection has been raised. No such objection is stated to have been raised before the trial Judge. In so far as the objection that was dated 12.03.2013 is concerned, there vide para 3 an objection has been taken that the personal bond dated 19.12.2012 that was filed, was unregistered one and that the original copy of agreement for sale was not filed, but it appears that this objection though was raised in para 3 of the affidavit, it was not pressed into service as a matter of fact. Para 7 of the affidavit does not show that any such objection was raised at the time security was accepted by the court and the court deferred the hearing on the said objection. Even in the grounds taken in the revision petition no such ground has been taken so as to be suggestive of the fact that such a plea was raised in the trial court and trial court deferred the hearing on this plea to be considered at the time of final disposal of application under Order IX Rule 13 CPC. 

36. On the contrary, I find that the order dated 23.01.2013 records that objection was as to the short fall in the deposit of rent i.e. 50% by cash. As a matter of fact, the court had granted opportunity for an objection to be filed to that extent only to be considered at the time of disposal of application under Order IX Rule 13 CPC. It is worth interesting to note that on 23.01.2013 when personal surety bond and security was admitted, neither any objection in writing was available before the court, nor any such objection orally was taken and therefore, in my considered view the findings returned by the trial court that the security was admitted in presence of parties to which no objection was raised regarding it being unregistered one, such an objection could not have been raised subsequently, can not be held to be bad.

37. Besides the above, looking to the aims and objects of the 1935 Amendment as discussed in the earlier part of this order, the purpose for inserting proviso to Section 17(1) has been to ensure that because of the conduct of the tenant if the ex parte decree is passed and subsequently recalled, the landlord is not placed in a disadvantageous situation. In the present case not only the application was previously filed i.e. at the time of presentation of order IX Rule 13 application, taking aid of the proviso to Section 17(1) but even the cash deposit to the tune of Rs. 2,75,000/- through tender and surety of personal bond and security in respect of the similar amount were submitted within three months and, therefore, I do not find any fault with the judgment and order dated 27.02.2014.

38. Availability of jurisdiction to exercise discretion is one thing and irregularity in compliance of order passed in exercise of discretion, is another thing. If statute confers discretionary power, though conditioned one, therefore, for exercise of such a discretion only given condition is to be complied with. Under the proviso to Section 17(1) court in its discretion may permit the judgment debtor to submit security in part or whole for performance of judgment but for that an application must be there whether filed before or at the time of presenting miscellaneous application. Once the court exercises that discretion granting liberty to the judgment debtor to submit security or partly by way of security and partly in cash of the decretal amount, no fault can be found in exercise of such a discretion. Section 17(1) and its proviso is a substantive provision of law and so discretion if exercised to maintain an application under Order IX Rule 13 CPC, cannot be questioned as such. The nature of security can be an issue but defect therein would be only an irregularity which can be cured seeing the purpose behind the provision to only safeguard interest of landlord as against the tenant who may run away again with the recall order to somehow defeat the purpose of Suit. The court once exercised this discretion, is equally vested with power to extend time for deposit of the amount of money and/ or security but this extension of time should be granted sparingly considering the bonafide plea of judgment debtor for not being able to deposit and so not depositing security or cash for unavoidable circumstances. It will all depend upon facts of an individual case and no hard and fast rule can be laid down but in any case before application under Order IX Rule 13 CPC is allowed, the court must ensure that cash / security or both as it may have ordered, has been submitted by the judgment debtor. The court must remain vigilant always that this discretion is not abused by the judgment debtor for just borrowing time to derail the speedy justice delivery system. Power under section 151 C.P.C. is meant to advance the cause of justice and smoothen its course and not to impede it. The case in hand is one such case where discretion was rightly exercised and so time extension could have also been granted by way of a last opportunity. It was a case to remove defect in the security submitted, which was curable.

39. The extension of time and the conduct in deposit by delay coupled with the aid of discretion being exercised by the court, cannot be taken to be a case vitiated for malafides. Further, I find that the court has not found any default or shortcoming in the payment of decretal amount except the cost part and therefore, I do not find any fault with the judgment and order dated 27.02.2014 in the facts and circumstances of the case. However, since court directed this issue of short fall to be considered at the time of disposal of Order IX Rule 13 CPC application, it cannot be said that it exceeded the jurisdiction in entertaining an application under Order IX Rule 13 CPC. While holding that there was a short fall of Rs. 24,887/- towards the expenses of case in execution, the court recorded in its order dated 27.02.2014 that there was no service of summons/ notice effected upon the tenant in connection with SCC Case No. 11 of 2012 and that was the reason why he could not appear in the court and could not participate in the proceedings, inasmuch as, he raised the plea that there was no tenant and landlord relationship. The court recorded that the entire records of the case do not reflect as to when court recorded satisfaction of service of summons upon the tenant to justify an ex parte proceeding against the tenant. It is worth noticing that the court has recorded short fall of Rs. 24,287/- because of the details of expenses given in the execution case. Thus, Rs. 5,25,000/- was deposited towards the arrears as per the decree and Rs. 25,000/- stood deposited towards expenses as ordered under the original judgment and decree dated 25.08.2012. The court recorded that the amount varied because of the statement made in the execution case. This variation would not defeat the deposit made initially under Section 17 for any short fall. Thus in my considered view the judgment of the trial court dated 27.02.2014 cannot be faulted with under the given facts and circumstances of the case.  

40. Now once the decree has stood set aside, and the direction was issued under the order dated 27.02.2014 to deposit Rs. 24,287/-, in my considered view it would be an order to deposit an amount independent of an amount which is sought to be deposited as a pre requisite vide proviso to Section 17(1) to consider an application under Order IX Rule 13 CPC on its own merits.

41. In such above view of the matter, therefore, the court could have allowed the application filed by the petitioner on 06.03.2014. The power here could have been exercised under Section 151 CPC to grant at least one last opportunity to do the needful but the manner in which the order has been passed and the language in which it is couched that:^^le;o`f) iznku ugha dh tk ldrhA izkFkZuk i= fujLr^^ [Time extension cannot be granted. Application rejected" (translated by Court)]", shows that there has been absolutely no application of mind. By no judicial canon or scale of justice this order can pass the test of judiciousness which is expected of a judicial officer while disposing an application in a court of law proceeding.

42. Thus the order dated 06.03.2014 is held unsustainable.

43. In the special facts and circumstances of this case where the court has recorded that the service of summons were not duly served as there was no satisfaction recorded by the court regarding effective service of summons upon the defendant/ tenant before proceeding ex parte, the court was justified in recalling the ex parte judgment and decree and therefore, the order passed on 27.02.2014 is sustained. Although the issue qua nature of surety as personal bond and security submitted and any deficiency therein was not raised as by any oral argument, nor at the time when it was being accepted, but in my considered view the document that has to be filed by way of security has to be original one. No amount of security or mortgage for that matter can be created in the absence of an original or certified copy of an instrument qua the land and therefore, it would be necessary for the tenant to deposit the original agreement for sale before the trial court by way of security. I do not find any requirement of law for furnishing a personal bond. Submission of a collateral security in terms of deposit of title deed or any registered agreement with a right to property, is sufficient. A personal affidavit in support of security would do the needful.

44. In view of the above, the order dated 06.03.2014 passed by the Judge Small Causes upon Misc. Application of the petitioner dated 06.03.2014 assailed in Revision No. 245 of 2014 is hereby set aside. The petitioner is directed to deposit the amount within a period of 15 days from today and also furnish the original copy of the agreement for sale before the trial court within the same period. The petitioner now shall be taken to have notice of the suit and so he will be filing written statement within six weeks from today and thereafter, the court will proceed to decide the suit being no. 11 of 2012 within a further period of six months without granting unnecessary adjournments to either of the parties.

45. Accordingly, S.C.C. Revision No. 215 of 2014 is dismissed, S.C.C. Revision No. 245 of 2014 is Allowed and S.C.C. Revision No. 246 of 2014 is also dismissed in view of the fact that S.C.C. Revision No. 245 of 2014 has been allowed and in the circumstances there will be no order as to cost.

Order Date :- 11.11.2022

IrfanUddin