Supreme Court: Application U/O IX Rule 13 CPC can be allowed only when sufficient Cause is made out to set aside Ex­ Parte Decree [Read Judgment]

The Supreme Court on 3rd March,2021 comprising of a bench of Justices Ashok Bhushan and R. Subhash Reddy observed that application under Order 9 Rule 13 of the Code of Civil Procedure cannot be automatically granted and can be allowed only when sufficient cause is made out to set aside the ex­ parte decree. (Subodh Kumar Vs. Shamim Ahmed)

Facts of the case

The Respondent No.1 was inducted as a Tenant at Rs.150/­ per month by the Landlord (hereinafter Appellant). The dispute relates to a shop being Shop No.39 (29). This Property was purchased by the Appellant via sale deed. The Appellant filed a case, claiming possession, amount of rent, due rent and mesne profit.  Several opportunities were given to the Respondent No. 1 to file a written statement; however he failed to do so. The Court passed an order to proceed ex­- parte and on the case  was allowed by ex­-parte judgment.

After that an Application was filed by the Respondent No. 1 under Section 30(2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (UP 1972 Act), to deposit the rent.  This Application was allowed and the Respondent No. 1 on deposited a rent of Rs.16,800/­- for the period of 01.03.1988  to 30.06.1997.

Thereafter, the Respondent No. 1 filed an Application under Order IX Rule 13 CPC along with Application under Section 5 of Limitation Act for condoning the delay to recall the Ex­-parte Decree. However, no deposit was made by the Respondent No. 1 in this regard as was required by Section 17 of the Provincial Small Cause Courts Act, 1887 (the 1887 Act). The Trial Court rejected the Application filed by the Respondent No.1 under Order IX Rule 13 and Section 5 of the Limitation Act.

The Respondent No. 1 then filed a Revision Petition before the District Judge, which was rejected. Aggrieved by the Order of the Trial  Court as well as Order of the District Judge, a Writ Petition was filed by the Respondent No. 1 in the High Court of Uttarakhand (High Court).

The High Court set aside both  the Orders respectively thereby allowing the Writ Petition and remanded the matter back to the Trial Court for reconsideration of  Respondent’s Application under Order IX Rule 13 CPC and Section 5 of the Limitation Act in accordance with law. Subsequently, the Appellant filed a Special Leave Petition in the Hon’ble Supreme Court of India, which was dismissed and the Appellant was given a liberty to file a Review Application before the High Court, which was also rejected.

The Appellant aggrieved by the aforesaid Judgments dated 13.12.2018 and 24.05.2019 of  the High Court, filed an Appeal before the Apex Court.

Contention of the parties

• Shri R.B. Singhal, the counsel for the appellant submitted that application of tenant under Order 9 Rule 13 was rightly rejected for non-compliance of mandatory provisions of Section 17 Proviso of the Act, 1887. It was submitted that as per proviso to Section 17, the tenant was obliged to deposit the decretal amount due on the date of filing the application which has not been complied with. The application has been rightly rejected by the trial court.
• He has further submitted that the application   to   give   the   benefit   of   the   amount deposited under Section 30(2) of UP Act No.13 of 1972 was filed by the tenant on 27.07.2002 that is after four years which could not have enured to the benefit   of   the   tenant. The   deposit   made  under Section 30(2) of the U.P. Act No.13 of 1972 was in the name of the appellant as well as the respondent No.5, hence, the deposit also was not relevant for giving benefit to the  tenant  under   Section   17 proviso. The deposit under Section 30(2) being in joint name  which could not  be withdrawn   by landlord­ appellant alone, such deposit cannot help the respondent tenant for compliance of Section 17 proviso. Even the deposits made under Section 30(2) was not the deposit of the total amount due on the date of filing the application under Order 9 Rule 13.
• Dr.Sumant Bharadwaj, appearing for the respondent submits that the amount deposited under Section 30(2) of U.P.Act No.13 of 1972 was entitled to be given credit for the purposes of proviso to Section 17  of  Act,   1887   and   the   High   Court   has rightly   taken the view that the  amount up to 31.12.1998 having   already   been   deposited   under Section 30(2), the application under Order 9 Rule 13 could not have been rejected for non­compliance of proviso to Section 17.
• It was submitted that the   High   Court has rightly taken   the   view   that   the   Court   below   had adopted hypertechnical and pedantic approach while considering the application under Order 9 Rule 13 and   Section   5   of   the   Limitation   Act.   It   was submitted that the tenant had deposited the entire decretal amount under Section 30(2) which was due at   the   time   of   filing   application   under   Order   9 Rule 13. The application filed by the tenant was wrongly rejected by the trial court as well as the Revisional   Court.   The   High   Court   has   done substantial   justice   in   allowing   the   application under Order 9 Rule 13.

Court's Observation and Judgment

The bench noted as follows:

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.

"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 ex­ parte or for review of the judgment cannot be automatically granted. The compliance of proviso to Section 17 is a Precondition for maintainability of application under 42 Order 9 Rule 13. Application under Order 9 Rule 13 can be allowed only when sufficient cause is made out to set aside the ex ­parte decree. The present is a case where no sufficient cause was made out to set aside the ex parte decree.", the bench added.

Observing thus, the bench concluded that the tenant had not made out any sufficient ground to allow the application under Order 9 Rule 13 and the High Court committed error in interfering with the order of the trial court rejecting such application which was also confirmed by the District Judge. The court also added that requirement under proviso to Section 17 can neither be said to be hyper technical nor pedantic but the same was the requirement of law and condition precedent for maintainability of application under Order 9 Rule 13.

Allowing the appeal, the bench directed the Executing Court to execute the decree and put the appellant in possession along with the payment of entire decretal amount up to date within a period of three months from the date the copy of judgment is produced before the Executing Court.

Read Judgment @Latestlaws.com

Picture Source :