Sanjay Mishra @ Ashu vs Magan Pandey And Another
2023 Latest Caselaw 12019 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved On: 4.4.2023
 
Delivered On : 20.4.2023
 

 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 2716 of 2023
 

 
Petitioner :- Sanjay Mishra @ Ashu
 
Respondent :- Magan Pandey And Another
 
Counsel for Petitioner :- Shubham Srivastava,Sunil Kumar Srivastava
 
Counsel for Respondent :- Ramesh Chandra Agrahari
 

 
Hon'ble Neeraj Tiwari,J.

Heard Sri Sunil Kumar Srivastava, learned counsel for the petitioner and Sri Ramesh Chandra Agrahari, learned counsel for the respondents.

Present petition has been filed for challenging the judgment and order dated 13.2.2023 passed by the Additional District Judge, Court No.18, Kanpur Nagar in Misc. Case No. 251 of 2020 (Sanjay Mishra @ Aashu Vs. Magan Pandey and others) arising out of SCC Suit No.99 of 2016 (Magan Pandey and another vs. Sanjay Mishra @ Aashu) whereby application under Order 9 Rule 13 C.P.C. for setting aside ex-parte judgment and decree dated 3.2.2020 has been rejected.

Since, only legal question is involved in the present petition, therefore, with the consent of parties without inviting for affidavits, petition is being decided at the admission stage itself.

Learned counsel for the petitioner submitted that plaintiffs-respondents have filed S.C.C. Suit No. 99 of 2016 for eviction and payment of rent, which was ex parte decided vide order dated 3.2.2020. Against that, petitioner-defendant has moved an application under Order IX Rule 13 read with Section 151 of CPC on 29.2.2020, which was dismissed in default vide order dated 12.2.2021. After dismissal of the said application, petitioner-defendant has moved restoration application, which was allowed vide order dated 10.3.2022 with liberty to ensure the compliance of Section 17 of Provincial Small Cause Courts Act, 1887 (hereinafter referred to as Act, 1887). Thereafter, petitioner-defendant has moved an application on 6.4.2022 for compliance of Section 17 of Act, 1887. The said application was rejected vide order dated 13.2.2023 on the ground that while filing application under Order IX Rule 13 of CPC, he has not complied the Section 17 of Act, 1887 and in case treating that he has complied the Section 17 of Act, 1887, even though same was not the full compliance as full amount has not been deposited.

Learned counsel for the petitioner assailed the impugned order on two grounds; First of all, Court itself while allowing the restoration application, granted permission to ensure the compliance of Section 17 of Act, 1887, therefore, there is no occasion for the Court to reject the application for non compliance of Section 17 of Act, 1887. Secondly, in case of part compliance, petitioner-defendant may have been given liberty for remaining compliance to make the deficiency good.

In support of his contention, he has placed reliance upon the judgment of Apex Court as well as this Court in the cases of Shyam Kumar Gupta & Ors. vs. Shubham Jain passed in Civil Appeal No.765 of 2023 arising out of SLP (C) No.2542 of 2023 and Smt. Sushma Agarwal vs. District Judge, Agra and 2 others passed in Matters Under Article 227 No. 4089 of 2018.

Sri Ramesh Chandra Agrahari, learned counsel for the respondents has vehemently opposed the submission of learned counsel for the petitioner and submitted that Order IX Rule 13 read with Section 151 CPC clearly provides that at the time of filing of application, provision of Section 17 of Act, 1887 must have been complied with. In the present case, there is no dispute on the point that while filing the application under Order IX Rule 13 of CPC, he has not complied the Section 17 of Act, 1887, therefore, there is no illegality or perversity in the impugned order.

He next submitted that so far as judgment of Apex Court in the case of Shyam Kumar Gupta (supra) is concerned, that is not applicable in the case of petitioner for the reason that in the said case, decretal amount was not clear whereas in the present case ex parte decree and judgment was given on 3.2.2022, decree was prepared on 12.2.2022 and application under Order IX Rule 13 of CPC was filed on 22.2.2022 meaning thereby that petitioner had full knowledge about the decretal amount even though he has not deposited the single penny, while submitting the application under Order IX Rule 13 of CPC.

He next submitted that facts of judgment of Apex Court in the case of Shyam Kumar Gupta (supra) are different. In that case, there are some certain error in quantifying the amount in decree, therefore, full compliance of Section 17 of Act, 1887 could not be made. Court considering this fact has given liberty to petitioner-defendant to deposit the amount for full compliance of Section 17 of Act, 1887.

He also submitted that so far as judgment of this Court in the case of Smt. Sushma Agarwal (supra) is concerned that is also not applicable for the very same reason in that case, petitioner-defendant has deposited Rs.85,000/- in cash, which was accepted by the landlord, therefore, Court has taken view that in such matter opportunity must have been given for compliance of Section 17 of Act, 1887.

He also pointed out that permission of compliance of Section 17 of Act, 1887 vide order dated 10.3.2022 while allowing the restoration application is contrary to law, therefore, considering this fact, Court in its ex parte decree and judgment, made it clear that while passing the order dated 10.3.2022, it was not intention of Court to grant time for compliance of Section 17 of Act, 1887 after restoration of application Order IX Rule 13 of CPC.

He further submitted that second ground taken by the learned Court below while rejecting the application under Order IX Rule 13 of CPC is having full force. In fact, Court has only held that in case in the interest of justice, if it has been accepted that petitioner had deposited the amount, that is also not full compliance. In present case, intention of petitioner was from the very day one was not appears to be proper. He first deposited the zerox copy of bank draft in his own name, which cannot be treated compliance of Section 17 of 1887. Thereafter, he deposited the two cheques amounting to Rs. 1,14,000/-, which is not fulfilling the requirement of provision of Section 17 of Act, 1887 as the decretal amount was Rs.2,07,611/-.

He firmly submitted that petitioner is taking benefit of his own fault as after dismissal of his application under Order IX Rule 13 of CPC in default, he has filed restoration application dated 10.3.2022 in which he was given liberty for compliance of Section 17 of Act, 1887. He further submitted that if it would have not been dismissed in default, petitioner would has no occasion to obtain order to fulfill the deficiency of Section 17 of Act 1887. Therefore, there is no illegality or perversity in the impugned order and petition is liable to be dismissed with heavy costs.

In support of his contention, he has placed reliance upon the judgment of Apex Court as well as this Court in the cases of Keadarnath Vs. Mohan Lal Kesarwari reported in 2002 0 AIR (SC) 582.

Being confronted by the Court, learned counsel for the petitioner could not dispute this fact that in case in absence of dismissal of application under Order IX Rule 13 of CPC, he would have no occasion to obtain order to fulfill the requirement of Section 17 of Act, 1887.

I have considered the rival submissions advanced by the learned counsel for the parties and perused the record as well as judgments relied upon. Undisputed facts of the case are that plaintiffs-respondents have filed S.C.C. Suit No. 99 of 2016 for eviction and payment of rent, which was ex parte decided vide order dated 3.2.2020. Petitioner-defendant has filed an application under Order IX Rule 13 read with Section 151 of CPC on 29.2.2020 without compliance of Section 17 of Act, 1887, which was dismissed in default vide order dated 12.2.2021. Thereafter, petitioner-defendant has moved restoration application, which was allowed vide order dated 10.3.2022 with observation to comply the Section 17 of Act, 1887.

Now, the issue before this Court is that as to whether while allowing the restoration application, S.C.C. Court can grant liberty to petitioner-defendant to comply the Section 17 of Act, 1887 and whether it is case of part compliance of Section 17 of Act, 1887 or not.

I have perused the Order IX Rule 13 of CPC as well as Section 17 of Act, 1887, which are quoted hereinbelow:-

Section 17 of Act, 1887.

"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)."

Order IX Rule 13 of CPC

"13. Setting aside decree ex parte against defendant.- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:

1[Provided further than no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.]

2[Explanation.-Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.]"

From perusal of the same, it is apparently clear that no application under Order IX Rule 13 of CPC can be filed without compliance of Section 17 of Act, 1887. Undisputedly, petitioner has preferred application dated 29.2.2020 without compliance of Section 17 of Act, 1887, which was ultimately dismissed in default vide order dated 12.2.2021. Against that, restoration application has been filed, which was allowed vide order dated 10.3.2022 with the observation to comply the Section 17 of Act, 1887. Section 17 of Act, 1887 is mandatory having no provision of extension of time.

From conjoint reading of Section 17 of Act, 1887 and Order IX Rule 13 of CPC, it is apparent that such observation is wholly unwarranted and contrary to provision of rules. Therefore, considering this fact, S.C.C. Court itself had clarified the same in its order dated 3.2.2020. In fact, restoration application has never filed along with prayer for seeking permission to comply the provision of Section 17 of Act, 1887, but it was only filed to recall its order dated 12.1.2022, therefore, such observation cannot be treated an order from the Court, which is in teeth of settled provisions of law.

It is also undisputed that in case application under Order IX Rule 13 read with Section 151 CPC dated 29.2.2020 would not have been dismissed in default, petitioner-defendant would have no occasion to obtain such order for compliance of Section 17 of Act, 1887 upon the restoration application.

It is also settled that no one can take benefit of his own fault and certainly dismissal of the petition/application in default solely due to fault on the part of the counsel for the party. For which, he cannot be extended any extra benefit contrary to the provisions of law, therefore, first argument of learned counsel for the petitioner is having no force.

In light of discussion made hereinabove, this Court is of the firm view that while allowing restoration application, no liberty can be granted to petitioner-defendant for compliance of Section 17 of Act, 18887

Second argument of petitioner is that he should have been given opportunity to fulfill the remaining compliance of Section 17 of Act, 1887, if any.

I have perused the judgment of this Court in the case of Shyam Kumar Gupta (Supra) relied by the learned counsel for the petitioner. The relevant paragraphs of the said judgment are being quoted hereinbelow:-

"15. It could be reasonably noticed that in relation to the suit to which the Act of 1887 applies, an applicant seeking an order to set aside the decree passed ex parte is required to deposit the amount due under the decree/judgment or has to furnish security for due performance of the decree or compliance with the judgment. Even under Order IX Rule 13 CPC, while making an order for setting aside the decree passed ex parte, the Court may put the defendant to terms as to costs, payment into Court or otherwise. However, these requirements need to be visualized from a practical standpoint and cannot be applied as if to penalize the defendant for every mistake, even if the amount payable is not explicitly quantified in the decree in question.

15.1. For the purpose of the case at hand, as regards the amount payable, a sum of Rs. 8,000/- towards arrears of rent had been quantified in the decree and another sum of Rs. 3,212/- towards costs could have been taken as quantified. Of course, the plaintiff was further held entitled to receive Rs. 2,000/- per month towards rent/mesne profits during the suit and until getting the actual vacant possession of the suit shop after payment of requisite court fees but, the Trial Court did not specifically quantify the amount payable by the defendant even until the date of decree. In the given circumstances, when the defendant, predecessor of the appellants, immediately moved the Court after noticing the decree in question and deposited the amount directly quantified thereunder i.e., the sum of Rs. 8,000/- towards arrears of rent and Rs. 3,212/- towards costs, totalling to Rs. 11,212/-, while seeking the order for setting aside ex parte decree, it had not been a case where the defendant had ignored the requirements of deposit altogether. Moreover, the decree in question had not been merely a money decree but had been for eviction too. Looking to the subject-matter of the suit and the overall circumstances, a practical view was required to be taken and if all any further deposit or furnishing of security was considered necessary, appropriate orders could have been passed in that regard. Putting it differently, in terms of Section 17 of the Act of 1887 read with Order IX Rule 13 CPC, the Court could have extended the time for making deposit if so required, or could have put the defendant to the terms of security for performance of the decree.

15.2. However, for what has been noticed and extracted hereinabove, it is apparent that Trial Court and the High Court have viewed the requirements of Section 17 of the Act of 1887 from such an exacting and rather impractical standpoint that the bonafide attempt of the defendant to seek a merit decision of the suit after due contest has been totally ignored. In our view, in the present set of facts and circumstances, prayer of the defendant to set aside ex parte decree could not have been denied for want of further deposit in terms of the decree in question.

15.3. The High Court, while dismissing the petition filed by the appellants and endorsing the views of the Trial Court, has proceeded to rely upon the decision of this Court in the case of Kedarnath (supra), that the provisions of Section 17 of the Act of 1887 are held to be mandatory. In our view, reference to the said decision remains inapposite in the present case. Even if the requirements of Section 17 of the Act of 1887 are held to be mandatory, the present one had not been a case where the defendant had altogether ignored those requirements. In Kedarnath (supra), in the very passage reproduced by the High Court, it was clearly noticed that the applicant did not make any deposit and did not move any application for dispensing with deposit or seeking leave of the Court for furnishing security. In the backdrop of such facts, showing total non- compliance of the requirements of Section 17 of the Act of 1887, this Court held the application for setting aside the decree as incompetent. It is difficult to apply the decision in Kedarnath (supra) to the facts of the present case.

16. Apart from the above, where we find that the Trial Court and the High Court had taken too technical and impractical a view of the matter, there is another strong reason for which we are inclined to accept the prayer for setting aside the decree passed ex parte in this case. As noticed, in response to the queries of this Court, the appellants have immediately taken bonafide steps and have deposited the amount which may be relatable to rent/mesne profits until the month of April, 2023. For this bonafide and prompt step (albeit taken after approaching this Court), in our view, they do deserve an opportunity to contest the suit on merits, particularly when the matter relates to a shop where the predecessor of the appellants had been continuing as tenant and the plaintiff-respondent is seeking the decree for eviction only on the ground of default in payment of rent."

From perusal of the above paragraphs of the aforesaid judgment, it is apparently clear that there are some factual error in quantifying the amount in decree and trial Court has not specifically quantify the amount payable by the defendant even untill the date of decree. Due to which, petitioner-defendant has deposited certain amount to his understanding and for remaining, Court has permitted to petitioner-defendant to deposit amount for full compliance of Section 17 of Act, 1887.

So far as present case is concerned, there is no dispute on the point that judgment was delivered on 3.2.2022, decree was prepared on 12.2.2022 and application under IX Rule 13 of CPC was filed on 22.2.2022 without depositing single penny for compliance of Section 17 of Act, 1887, therefore, this judgment would not come in the rescue of petitioner.

I have also perused the judgment of this Court in the case of Smt. Sushma Agarwal (Supra) relied by petitioner. The relevant paragraphs of the said judgment are being quoted hereinbelow:-

"13. The Supreme Court has observed that the proviso of Section 17 does not provide any extent of time by which such application for dispensation for prior deposit of the decretal amount may be filed. The Court has observed "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. 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."

17. The learned counsel for the respondents has also relied upon a Division Bench decision of this Court in Raj Kumar Makhija and others Vs. M/s. SKS and Co. and others, 2000 (3) ARC 117 that it is duty of the applicant to calculate the correct decretal amount as per the decree and Court is not required to get the decretal amount calculated for the applicant. If there is any shortfall due to calculation made for any reason its consequences will follow and wrong calculation will provide no shelter to such an applicant.

18. It has been held by the Division Bench that any application filed by the tenant-defendant to make good the shortfall either in the deposit of security after expiry of period of limitation is of no consequence. The application for setting aside the ex-parte decree would be dismissed for non compliance of the proviso to Section 17 of the Act. It has also been held that any amount deposited after expiry of period of limitation will also be taken into consideration for judging the compliance of the proviso to Section 17 of the Act. However, it has also observed that the Court can ignore the shortfall in deposit of a negligible amount on the principle of deminimis as explained in the body of the judgment. It has held further that there is no provision conferring power on the Court to condone the delay in making deposit and provisions of Section 5 of the Limitation Act will not be applicable to the deposit contemplated under the proviso to Section 17 of the Act.

20. I have considered the arguments raised by the learned counsel for the petitioner-tenant and also by the learned counsel for the respondent. No doubt that the provisions of Section 17 of the PSCC Act are mandatory in nature. It is, however, true that the petitioner had deposited Rs.85,000/- before the application under Order 9 Rule 13 of Code of Civil Procedure came up for disposal before the learned Trial Court. This fact is admitted to either of the parties that at the time when the suit was decreed it had been held by the Judge, Small Causes Court that the tenant was in arrears of payment of rent w.e.f. 1st of April, 2015 at the rate of Rs.5,000/- per month. The rent due at the time of filing of the SCC Suit was for five months, and for fourteen months, at the time when the Restoration Application was moved by the petitioner. The petitioner deposited Rs.10,100/- at the time of filing of the application for recall and during the pendency of her application for determination of the correct decretal amount, she deposited another Rs.75,000/-, which was received by the husband of the respondent No. 3.

22. The bonafide intent of the tenant has undoubtedly been established in making payments @ Rs.5,000/- per month and also depositing some amount extra i.e. to the tune of Rs.10,100/- from a perusal of the papers brought on record. The intention of adding the proviso to Section 17 in the Provisional Small Causes Court Act, 1887 can be gathered from the language of the proviso. It was added to avoid the possibility of a litigant taking advantage of Recall Application being moved without first establishing his bonafide to pursue the litigation further, and to avoid the decree holder from being prejudiced due to the pendency of the litigation.This Court, therefore, feels it appropriate to set aside the order passed by the two learned Courts below with the observations that the tenant cannot be non-suited on a hyper technical ground when she had already deposited Rs.85,100/- during the pendency of application under Order 9 Rule 13 C.P.C."

Similarly, in this matter, certain amount was accepted by the plaintiff in cash, therefore, Court has granted one more opportunity for compliance of Section 17 of Act, 1887, but in the present case, at no point of time, plaintiff-respondent has accepted any amount for compliance of Section 17 of Act, 1887, therefore, this judgment is also not helping the petitioner.

I have also perused the judgment of Apex Court in the case of Kedarnath (supra) as relied by the respondent, which is squarely covered with the present controversy. 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 perusal of the same, it is clear that neither application was accompanied by any deposit nor any application has been filed for dispensing with deposit and seeking leave of the Court for furnishing such security.

In the present case too, neither application of petitioner under Order IX Rule 13 of CPC was accompanied alongwith deposit required under Section 17 of Act, 1887 nor having any application to dispense with the deposit of Section 17 of Act, 1887. Even in restoration application, there is no such prayer to grant permission to comply the Section 17 of Act, 1887. Therefore, in light of aforesaid judgment, petitioner is not entitled for any relief to comply the provision of Section 17 of Act, 1887 after filing of application under Order IX Rule 13 of CPC read with 151 CPC.

This Court is of the firm view that it is not the case of part compliance, therefore, benefit of judgments of Shyam Kumar Gupta (Supra) and Smt. Sushma Agarwal (Supra) cannot be given to petitioner.

Both the Courts have considered each and every aspects and rightly came to the conclusion that petitioner has never complied the provision of Section 17 of Act, 1887. Courts have also rightly taken view that in case, it is treating to be compliance, the same is not full compliance as amount so required has not been deposited.

In view of above facts mentioned hereinabove as well as law laid by this Court, the writ petition lacks merit and is, accordingly, dismissed. No order as to costs.

Order Date :- 20.4.2023

Junaid