Dismissed

Sachin Kumar v. Rajeev Bansal

Allahabad HC25 Aug 2022A227/5506/2022

Case brief

AI extract

What is this about?

This High Court dismissed a writ petition challenging the rejection of an application to furnish security under the Provincial Small Causes Court Act. The court held that the late-filed application was beyond the statutory limitation and could not be entertained.

What did the court decide?

The date of order 30.05.2022 rejecting the applicant's application and the writ petition are dismissed; no directions to accept security.

Sachin Kumar Vs Rajeev Bansal — Property and Title | Allahabad HC (2022)

¶1

¶2

Reserved on 1.8.2022

¶3

Delivered on_25.8.2022

¶4

Court No. - 1

¶5

Case :- MATTERS UNDER ARTICLE 227 No. - 5506 of 2022 Petitioner :- Sachin Kumar Respondent :- Rajeev Bansal

¶6

Counsel for Petitioner :- Ravindra Kumar Dwivedi,Ghanshyam Das Mishra

¶7

Counsel for Respondent :- Swapnil Kumar Hon'ble Piyush Agrawal,J.

¶8

By this writ petition, a challenge has been made to the order dated 30.5.2022 passed by the Additional District Judge/Fast Track Court-I Etah passed in Misc. SCC Case No. 102 of 2021 and also prayed to direct for acceptance of Security as submitted by the petitioner/defendant.

¶9

Brief facts of the case are that respondent-plaintiff filed a SCC Suit No. 6 of 2019 for obtaining decree of ejectment from the property in dispute as well as for realization of Rs. 77,000/- as rental dues and other misc. charges of Rs. 11,000/- per month. On 20.9.2021 the court below passed an ex parte order allowing the prayer of the respondent in toto. On 16.10.2021 the petitioner moved a restoration application under Order 9 Rule 13, C.P.C. for recalling the order also with a prayer to decide the case on merits. The petitioner on the same day moved an application under section 17 of Provincial Small Causes Court Act, 1978 praying to quash the order dated 20.9.2021 specifically mentioning in it that he is ready to pay the rent of Rs. 77,000/- as security, which was numbered as Paper No. 7C. On 18.12.2021 the said Paper No. 7C application was allowed and the petitioner was permitted to furnish security of Rs. 77,000/- in pursuance of the order dated 20.9.2021. Pursuant thereto the petitioner gave the security,

¶10

¶11

which was numbered as Paper No. 8C and by order dated 23.2.2022 the security furnished by the petitioner was taken on record. On 26.4.2022 counsel for the petitioner informed that the security furnished was not in proper form and, therefore, he was required to furnish security in prescribed form along with an affidavit. Thereafter the petitioner filed an application (Paper No. 13C) and submitted proper security along with affidavit which were numbered as Paper Nos. 14C and 15C. The respondent filed his objection on 17.5.2022 stating that security along with affidavit given by the petitioner were not in accordance with the procedure and beyond limitation, therefore, the same are liable to be rejected. By order dated 30.5.2022 the petitioner's application No. 13C was rejected. Hence the present petition.

¶12

Heard Sri Ghanshyam Das Mishra learned counsel for the petitioner and Sri Swapnil Kumar, learned counsel for the respondent.

¶13

Learned counsel for the petitioner submitted that petitioner was ready and willing to deposit the rental dues of Rs. 77,000/- as well as misc. expenses and to this effect has furnished the security on 17.1.2022 in compliance with the court's order dated 18.12.2021. He further submits that since the defects as pointed out were removed on 26.4.2022 the same should be considered from the initial date of filing his application on 17.1.2022. He further submitted that the application dated 17.1.2022 was accepted and placed on record by court's order dated 23.2.2022, therefore, there is no violation or short fall in it.

¶14

Per contra, learned counsel for the respondent submitted that the petitioner has not complied with the order dated 18.12.2021 in letter and spirit and only a simple application was filed on 17.1.2022 with the prayer that the petitioner was ready to furnish the security but neither any indication of nature of security

¶15

¶16

nor any affidavit in support thereof nor any evidence in this regard was placed on record to show that the order dated 18.12.2021 was complied with. He further submitted that the security has to be furnished within time prescribed therein and in contravention of the provisions for not furnishing or giving the security cannot be condoned.

¶17

The petitioner on 16.1.2021 moved an application under section 17 of the Act for furnishing security towards rent due which was permitted by order dated 18.12.2021. Thereafter he filed security, which was numbered as Paper No. 8C and the same was brought on record by order dated 23.2.2022. The petitioner on 26.4.2022 gave another application for security along with security details and affidavit which were numbered as Paper Nos. 13C, 14C and 15C respectively, to which the respondentplaintiff submitted his objection stating therein that the security was not deposited along with the initial application and the same was deposited beyond the period of limitation. The court below on perusal of the record has rejected the 13C application by the impugned order dated 30.5.2022.

¶18

Section 17 of the Provincial Small Causes Court Act, 1887 specifically provides that a person who requires for recalling an ex parte order has to deposit entire amount due under the order/decree or to apply for furnishing security which shall cover the entire decretal amount along with an application. Under the said provision 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 can be granted. Provision does not provide for extension of time by which such application for dispensation may be filed. In other words the petitioner has to move an application in a proper form supported by an affidavit and while seeking leave of the court for furnishing security for the performance of the decretal amount, any such

¶19

¶20

application thereof beyond the period of limitation cannot be entertained and allowed.

¶21

Hon'ble Supreme Court in the case of Kedarnath vs. Mohan Lal Kesarwani (AIR 2002 SC 582) has held that an application for seeking leave to furnish security to the amount directed to be deposited by the court has to file along with the affidavit. Further a Division Bench of this Court in the case of Raj Kumar Makhija and others vs. M/s S.K. And Co. and others 2012(9) ADJ 337 has held that no application can be entertained after the expiry of period of limitation or any application for making good the nature of security and the affidavit.

¶22

In the case in hand, as stated above, an application for recalling an ex parte order along with an application seeking leave of the court for dispensing with deposit and furnishing security was filed but the nature of the security and the affidavit thereof were not filed, which was admittedly filed on 26.4.2022, much beyond the time as prescribed under section 17 of the Act, after filing of the previous application which has rightly been rejected by the court below.

¶23

In view of the foregoing discussions, no case is made out for interference in the impugned order dated 30.5.2022.

¶24

The writ petition is accordingly dismissed.

¶25

Order Date :- 25.8.2022

¶26

samz

¶27

Digitally signed by SYED AKHTARMOHAMMAD MEQDAD Date: 2022.08.26 14:01:08 IST Reason: Location: High Court of Judicature at Allahabad

Sachin Kumar v. Rajeev Bansal

Case brief

What is this about?

What did the court decide?

Sachin Kumar v. Rajeev Bansal

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ikbal Vs Smt. Bilkis Begum and 4 Others

Anil Kumar and Another Vs State of U P and 3 Others

Smt. Tabbasum @ Tavsum Vano @ Tripti and Another Vs State of U.P. and 3 Others

Mahendra Lal Jaini (Since Deceased) and 12 Others Vs the Praduman Nagar Co- Operative Housing Society Ltd. and Another

Alagu (Since Deceased) and 7 Others Vs Munni Lal and 6 Others

Dayanand Inter College Vs Smt. Jabbar Fatima and Another