Allahabad High Court
Anil Kumar vs Govind Prasad on 17 April, 2023
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 2
Case :- MATTERS UNDER ARTICLE 227 No. - 4189 of 2023
Petitioner :- Anil Kumar
Respondent :- Govind Prasad
Counsel for Petitioner :- Arun Kumar Tiwari
Hon'ble Neeraj Tiwari,J.
Heard learned counsel for the petitioner.
Present petition has been filed challenging the orders dated 19.01.2023 passed in SCC Revision No. 43 of 2023, 21.12.2022 passed in Misc. Case No. 346/74 of 2022 and 01.09.2022 passed in SCC Suit No. 113 of 2019.
Brief facts of the case are that SCC Suit No. 113 of 2019 was filed in which petitioner has filed written statement on 18.02.2021. The suit was decided ex parte vide judgment and decree dated 01.09.2022 upon which petitioner has filed application under Order IX Rule 13 of CPC on 17.09.2022 without complying provision of Section 17 of The Provincial Small Causes Courts Act, 1887 (in short "Act, 1887) and no exemption application has been filed along with said application.
Learned counsel for the petitioner submitted that on 29.09.2022, petitioner has filed application for putting motor cycle as surety for compliance of Section 17 of Act, 1887. He next submitted that while considering the application, Court has rejected the same on 21.12.2022 on the ground that application under Order IX Rule 13 of CPC was filed without complying the provisions of Section 17 of Act, 1887 and also not accompanied with any exemption application. He next submitted that while rejecting the restoration application, Court below has placed reliance upon the judgment of Apex Court in the matter of Kedarnath Vs. Mohan Lal Keshwarwani and others; 2001 (1) ARC 186 and judgment of this Court in the matter of Julfikur Hussain Vs. Madan Gopal Chopra; 2012 All.C.J. 494. Against that orders dated 01.09.2022 & 21.12.2022, petitioner has filed SCC Revision No. 43 of 2023 before District Judge, Kanpur Nagar, which was also rejected vide order dated 19.01.2023. He next submitted that due to shortage of money, petitioner could not comply the provision of Section 17 of Act, 1887 and later on, he has filed application dated 29.09.2022 for compliance, therefore, it is required on the part of Court below to consider the same. In support of his contention, he has placed reliance upon the judgment of Apex Court in the matter of Shyam Kumar Gupta and others Vs. Shubham Jain; 2023 0 Supreme (SC) 245.
I have considered the submissions so advanced by learned counsel for the petitioner and also perused the judgment relied upon. There is no dispute on the point that while filing restoration application under Order IX Rule 13 CPC, Section 17 of Act, 1887 was not complied with and further it was also not accompanied with any application for exemption of the same.
From perusal of judgment of Apex Court in the matter of Shyam Kumar Gupta (supra), it is apparently clear that there are some factual errors in quantifying the amount in decree and trial Court has not specifically quantified the amount payable by the defendant even until the date of decree. Due to which, petitioner-defendant has deposited certain amount to his understanding and for remaining, Court has permitted the petitioner-defendant to deposit amount for full compliance of Section 17 of Act, 1887.
I have also perused the judgment of Apex Court in the matter of Kedarnath (supra). Relevant paragraph of the said judgment is quoted hereinbelow:-
"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.
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."
From the perusal of same, it is apparently clear that while filing the application for setting aside ex parte decree, it has to be accompanied with deposit of decretal amount. In absence of compliance of Section 17 of Act, 1887, it is required to file exemption application along with application under Order IX Rule 13 of CPC.
In the present case, there is no dispute on the point that while filing application under Order IX Rule 13 of CPC, neither Section 17 of Act, 1887 was complied nor any exemption application was accompanied for exemption of time, therefore, in light of judgment of Apex Court in the matter ofKedarnath (supra), there is no illegality in the impugned judgment and orders dated 19.01.2023, 12.21.2022 & 01.09.2022.
Accordingly, petition lacks merit and is dismissed. No order as to costs.
Order Date :- 17.4.2023
Arvind
