Partly allowed

Reena Agarwal and 2 Others v. Smt. Shammi Malhotra

Allahabad HC28 Nov 2018SCCR/181/2016

Case brief

AI extract

What is this about?

This revision allows the appeal against an order setting aside an ex parte decree. The High Court held that the trial court erred in accepting a subsequent deposit for complying with Section 17 of the Small Causes Act without a prior application for dispensation. The matter is remitted for a fresh decision.

What did the court decide?

The impugned order setting aside the ex parte decree is set aside. The matter is remitted to the court below for a fresh disposal within three months.

Reena Agarwal and 2 Others Vs Smt. Shammi Malhotra — Execution and Attachment | Allahabad HC (2018)

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Court No. - 19

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Case :- S.C.C. REVISION No. - 181 of 2016

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Revisionist :- Reena Agarwal & 2 Others Opposite Party :- Smt. Shammi Malhotra Counsel for Revisionist :- Krishna Mohan Asthana Counsel for Opposite Party :- D. Kumar. Misra

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Hon'ble Manoj Kumar Gupta,J.

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Heard counsel for the parties.

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The instant revision is directed against an order dated 28.11.2015 passed by Additional District Judge Court No.10, Allahabad in Misc. Case No.1 of 2013 arising out of SCC suit no.20 of 2011. The Court below has allowed the application filed by opposite party/tenant under Order 9 Rule 13 CPC, setting aside the exparte decree dated 6.12.2012 in SCC suit no.20 of 2011.

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In brief the facts giving rise to the instant revision are that SCC Suit No.20 of 2011 was instituted by the plaintiff/revisionists (for short 'plaintiffs') against the defendant/respondent (for short 'tenant') for recovery of arrears of rent and for eviction from the tenanted premises, after terminating the tenancy by a notice dated 10.11.2010. The plaintiffs claimed arrears of rent from 1.11.2009 to Feb. 2011 amounting to Rs.16000/-, rent being Rs.1000/- per month. The suit was decreed exparte by Judge Small Causes by judgement dated 6.12.2012 and a decree of eviction as well as for arrears of rent at the rate of Rs.1000/- per month since 1.11.2009 till actual physical possession is delivered was passed against the tenant. The tenant filed an application under Order 9 Rule 13 CPC on 9.5.2013 praying for setting aside the exparte judgement dated 6.12.2012 and it came to be registered as Misc. Case No.1 of 2013. On 11.7.2014, the defendant deposited a sum of Rs.3340/- by a challan in government treasury followed by another deposit of Rs.66000/- by tender dated 8.5.2015. The trial court by impugned order allowed the application under Order 9 Rule 13 CPC after recording finding to the effect that the defendant had duly complied with the provisions of Section 17 of the Provincial Small Causes Court Act, 1887 (hereinafter referred to as 'the Act').

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Sri K.M. Asthana, learned counsel for the revisionist submitted that the court below erred in holding that the defendant had complied with the provisions of Section 17 of the Act. According to him, Section 17 is mandatory and for taking benefit of the said provision, the entire decreetal amount should have been deposited at the time of presenting the application or the defendant should have given security for performance of the decree or compliance with the judgement as the court would have directed and that too on a previous application made by him in this behalf. It is urged that the deposit made by the defendant for seeking benefit of Section 17 of the Act on 11.7.2014 and 8.5.2015 does not fulfill the said requirement. In support of his contention, he has placed reliance on various judgments which shall be discussed in the later part of the judgement.

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On the other hand, learned counsel for the tenant submitted that alongwith the application under Order 9 Rule 13 CPC, another application bearing paper no. 5-Ga and a tender was filed seeking permission of the court to deposit decreetal amount in compliance of Section 17 of the Act. A specific request was made in the said application, to the court, to pass the tender. According to him, once the tender was duly filed, but there was delay on part of the court in passing the tender, the tenant could not be penalised for the same. It is urged that for depositing any money in government treasury in the name of court, the tender is required to be passed by the court as per provisions of General Rule (Civil) and until the tender is passed, money is not accepted by the treasury. He further submitted that the bonafide of the defendants could not be doubted as they deposited the decreetal amount of Rs.3340/- by tender dated 11.7.2017 and another sum of Rs.66000/- by tender dated 8.5.2015, soon after the tenders were passed.

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I have considered the submissions of learned counsel for the parties and perused the original record of the court below which was summoned.

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Section 17 of the Provincial Small Causes Court Act, as applicable to the State of U.P. provides as under :-

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“17. Application of the Code of Civil Procedure.-- (1) The procedure prescribed in the Code of Civil Procedure, 1908, shall, save insofar 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

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by it and in all proceedings arising out of such suits:

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Provided that an applicant for an order to set aside a decree passed exparte or for a review of judgement 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.

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(2) Where a person has become liable as surety under the proviso to sub-section (1), the security may be realized in manner provided by Section 145 of the Code of Civil Procedure, 1908.”

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The Supreme Court in Kedar Nath vs. Mohan Lal Kesarwani and others, (2002) 2 SCC 16 considered in detail the impact of the said provision and held that the language of the provision is couched in mandatory form, therefore unless the provisions of Section 17 are strictly complied with, the application filed under Order 9 Rule 13 CPC would be incompetent. The relevant observations are :-

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“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.

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9. 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.”

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The law laid down by the Supreme Court in Kedar Nath (supra) has been followed in several judgements of this Court in holding that deposit made by a tenant seeking benefit of Section 17 after filing of application under Order 9 Rule 13 CPC would be of no avail to him. In this regard, the observations made in Jai Prakash Pandey vs. Baboo Lal Jaiswal 2009(77) ALR 769 are as follows :-

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“In the case on hand, the application for setting aside the ex parte decree was not accompanied by the requisite deposit in the Court of the amount due and payable by the tenant under the decree. Only a sum of Rs.20,000/- was deposited while as a matter of fact a sum more than Rs.33,200/- was required to be deposited. The deficiency has been sought to be made good subsequently by making a deposit of Rs.25,000/- on 19.4.2003. The law requires that the requisite deposit as per the provisions to Section 17(1) of Provincial Small Causes Court Act has to be made on a previous application filed by the applicant in this behalf. The application under Order 9 Rule 13 was made on 21.3.2003 and on that date only a sum of Rs. 20,000/- was deposited. Any deposit made subsequent to the date of the application i.e 21.3.2003 in the present case is of no avail to the tenant (applicant).”

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The above principle was reiterated by the same learned Judge in a judgement rendered on 16.2.2012 in Civil Revision No.15 of 2010 Dhirendra Kumar Agarwal vs. Smt. Jannatun Nisha. It is now well settled that the provisions of Section 17 of the Act are mandatory in nature and non-compliance of provisions thereof would render the application under Order 9 Rule 13 incompetent. There is also no doubt that the deposit under Section 17 should accompany the restoration application or alternatively an application should be filed for furnishing security for performance of the decree. Such an application could be filed upto the time of presentation of application under Order 9 Rule 13 CPC.

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The trial court, in the impugned judgement has observed that a sum of Rs.3300/- was deposited by a tender brought on record by the applicant by list 10-Ga and another sum of Rs.66000/- by a tender brought on record vide list no. 12-Ga. These tenders were brought on record much after filing of application under Order 9 Rule 13 CPC. However, learned counsel for the tenant vehemently urged that the tenant alongwith application under Order 9 Rule 13 CPC submitted the tender for depositing the entire decreetal amount

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alongwith an application 5-Ga filed on the same day with request to the court to pass the tender but since court did not pass any order on the said application, consequently, the defendant could not deposit the amount forthwith. It is urged that as soon as the tender was passed, the deposit was made, thus it would relate back to the date of filing of the application 5-Ga.

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On the other hand, counsel for the plaintiffs disputed that any such application was filed by the defendant alongwith the application under Order 9 Rule 13 CPC nor the application was accompanied by any tender.

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I have perused the original record of the court below and I find an application on record bearing paper no. 5-Ga in which it is stated that a tender is being filed for depositing the decreetal amount and the prayer made in the said application is for passing the accompanying tender. Paper no.3Ga is the application under Order 9 Rule 13 CPC, Paper no. 4-Ga is the affidavit of the tenant in support of restoration application and as noted above, paper no. 5-Ga is the application with the prayer to pass the tender. The tenant in her affidavit dated 16.4.2014 again took a stand to the effect that she has already filed tender in the court for deposit of decreetal amount and as soon as the same is passed, the amount would be deposited.

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The material on record undoubtedly proves that such an application was filed by the tenant. However, there is no tender accompanying the said application. Counsel for the tenant is also not in a position to explain as to what happened to the tender, which was allegedly filed alongwith the application 5-Ga. It cannot be disputed that if the application was filed alongwith the tender with request to pass the tender, on the day on which application under Order 9 Rule 13 CPC was filed, but the court delayed passing the tender, the tenant can not be blamed for the same. However, if the application was filed without any tender, or the tender was for a lesser amount, it would entail rejection of the application under Order 9 Rule 13 CPC. Apart from it, the other aspect would be, if no tender had accompanied the application 5-Ga whether filing of fresh tender at a later point of time and depositing money/decreetal amount, could be taken as valid compliance of Section 17 of the Act having regard to the law laid down by the Supreme Court in Kedar Nath (supra) and other judgments of this Court referred to

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above.

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Since the above aspects have not at all been adverted to by the court below, therefore this Court is of the opinion that the impugned order cannot be upheld and it is accordingly set aside. The matter is remitted back to the court below to decide the application under Order 9 Rule 13 CPC afresh having regard to the observations made above and in accordance with law expeditiously, preferably within a period of three months from the date of production of a certified copy of this order.

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The revision is allowed to the extent indicated above.

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No order as to costs.

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Office is directed to forthwith transmit the original record of the case to the court below so that there is no delay in deciding the matter.

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Order Date :- 28.11.2018 skv

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(Manoj Kumar Gupta, J.)

Reena Agarwal and 2 Others v. Smt. Shammi Malhotra

Case brief

What is this about?

What did the court decide?

Reena Agarwal and 2 Others v. Smt. Shammi Malhotra

Case brief

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What did the court decide?

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