Kedarnath
Vs. Mohan Lal Kesarwari & Ors [2002] Insc 17 (10 January 2002)
R.C.
Lahoti & Brijesh Kumar R.C. Lahoti, J.
The
landlord-appellant filed a suit for recovery of arrears of rent and for
eviction against the tenant-respondents on the ground available under Clause
(a) of sub-Section (2) of Section 20 of U.P.
Urban
Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter
U.P. Urban Buildings Act, for short. A suit of the nature filed by the
appellant being triable by a court of small causes, as provided by the U.P.
Civil Laws Amendment Act, 1972 was filed in the Court of Small Causes, Allahabad. On 9.8.1996, the suit came to be
decreed ex-parte. The decree directed the tenant-respondents to pay an amount
of Rs.8500/- as pre-suit arrears of rent and a further amount calculated at the
rate of Rs.250/- per month from the date of institution of suit to the date of
recovery of possession. A decree for eviction was also passed. The decree was
put to execution and on 21.2.1998 the decree-holder obtained possession over
the suit premises with police help. The court amin certified the delivery of
possession to the executing court. On 26.2.1998, the tenant- respondents moved
an application under Order 9 Rule 13 of the C.P.C. seeking setting aside of the
ex-parte decree. Neither the amount due under the decree was deposited nor an
application was filed seeking direction of the court to give security for the
performance of the decree in lieu of depositing the decretal amount.
On
14.10.1998, arguments were heard on the application under Order 9 Rule 13 of
the C.P.C.. The court appointed 16.10.1998 for orders.
It
appears that during the course of hearing the appellant decree-holder pointed
out to the court that the application seeking setting aside of the ex-parte
decree was not maintainable and was liable to be dismissed in limine for
non-compliance with proviso to Section 17 of the Provincial Small Cause Courts
Act, 1887 (hereinafter, 'the PSCC Act', for short). On 15.10.1998, the tenant-
respondents filed an application praying that they may be permitted to furnish
security for payment of decretal amount. The reason assigned for failure to
deposit the amount due under the decree or to furnish security alongwith the
application seeking setting aside of the ex-parte decree is somewhat
oscillating. At one place at is stated that their advocate had never advised
them to deposit the decretal amount as the advocate himself was not aware of
the provision. Then, at another place, it is stated that the rent was already
paid to the landlord decree- holder and there were no arrears required to be
deposited. At yet another place it is stated that their advocate had advised
them that on the application seeking setting aside of the ex-parte decree being
allowed and the suit being restored to file, on the first date of hearing the
tenant has to deposit the rent in arrears which would be done at that stage
only. Vide order dated 15.11.1998, the learned Judge, Small Causes, rejected
the application filed by the tenant-respondent forming an opinion that
ignorance of law was not excusable and the application under Order 9 Rule 13 of
C.P.C. filed without complying with proviso to Section 17 of the PSCC Act was
not maintainable.
The
tenant-respondents preferred a revision in the court of Additional District
Judge, which was allowed. The learned Additional District Judge vide order
dated 22.4.1999, condoned the delay in moving the application dated 15.10.1998
and directed the trial court to accept security as proposed and hear and decide
the application under Order 9 Rule 13 of the C.P.C. on merits. The abovesaid revisional
order was put in issue by the landlord-appellant by filing a writ petition
under Article 226 and 227 of the Constitution before the High Court, which has
been rejected. The landlord has filed this appeal by special leave.
Mr. Gourab
K. Banerji, the learned counsel for the appellant has made two submissions:
firstly, that the proviso to Section 17 of the Act is mandatory in its
character and non-compliance therewith cannot be condoned; and secondly,
assuming that the court has power to condone the delay in making the deposit or
furnishing the security on the principles deducible from Section 5 of the
Limitation Act, even then no sufficient cause was made out for belated offer to
make compliance and in as much as the landlord has already secured possession
of the premises, the tenant-respondents' application was liable to be rejected.
It is
not disputed at the Bar that such a suit as was filed by the landlord-appellant
is, in the State of U.P., to be heard and disposed of by a court of small
causes and hence would be governed by the provisions of the PSCC Act. Section
17 thereof provides as under:
"7.
Application of the Code of Civil Procedure.- (1) The procedure prescribed in
the Code of Civil Procedure, 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 the 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.
(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." It is relevant to note that the proviso to
sub-Section (1) of Section 17 has undergone a material change through an
amendment brought in by Act No.IX of 1935. Earlier there were the words-
"security to the satisfaction of the Court for the performance of the
decree or compliance with the judgment, as the court may direct" which
have been deleted and substituted by the present words - "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". The
Statement of Objects and Reasons for the 1935 amendment was set out as under:
"The
Act is designed to remove certain doubts which have arisen in the
interpretation of the proviso to sub-section (1) of Section 17 of the
Provincial Small Cause Courts Act, 1887. As the section stands, an applicant is
required to give security to the satisfaction of the Court at the time of
presenting his application. It follows that, in order to ascertain what
security satisfies the Court, the applicant must already have made an
application in that behalf. There is some doubt whether the words "as the
Court may direct" apply to the deposit of the whole decretal amount as
well as to the giving of approved security. The Act is intended to make it
clear that the preliminary application to ascertain what security will satisfy
the Court must be made and decided before the substantive application for the
order to seet aside the decree, and that it always is open to the applicant to
adopt the alternative course of depositing the total decretal amount. (Vide
Statement of Objects and Reasons, Gazette of India, 1935, Pt. V, p.90)."
The object behind establishing Small Cause Courts conferred with jurisdiction
to try summarily such specified category of cases which need to be and are
capable of being disposed of by adopting summary procedure of trial is to
secure an expeditious disposal and to curtail the lengthy procedure of
litigation. Excepting an order for compensatory costs in respect of false or
vexatious claims or defences or an order imposing fine or directing the arrest
or detention in the civil prison of any person (except where such arrest or
detention is in execution of a decree), orders and decrees of courts of small
causes are not appealable: they are only revisable by the High Court (or by
District Court under Section 115 of CPC as amended in its application to State
of U.P.). The jurisdiction to entertain and hear an application to set aside a
decree passed ex-parte or for a review of judgment by courts of small causes is
sought to be qualified and narrow down by imposing condition as to deposit or
giving security for performance or compliance by enacting proviso to
sub-section (1).
Such a
provision fits in the scheme of the PSCC Act. Although there is no
authoritative pronouncement by this Court (none brought to our notice)
interpreting the nature and scope of the proviso however, the learned counsel
for the appellant brought to our notice a number of decisions delivered by the
High Courts of Allahabad, Oudh, Madras, Orissa, Rajasthan and Lahore which have
taken the view that the proviso is mandatory and non-compliance therewith would
entail dismissal of the application because such non-compliance cannot be
condoned or overlooked by the court. They are, to wit : Mohammad Rajasthan 240.
As the present case arises from the State of Uttar Pradesh, the learned counsel for the appellant cited a series of
decisions delivered by Allahabad High Court so as to show the view of the law
being consistently taken there. These are : Krishan Kumar Additional District
Judge, Varanasi & Ors.- AIR 1991 Allahabad 223, VIIIth Additional District Judge, Allahabad & Anr. 2000 2 ARC
616.
The
learned counsel for the respondent brought to our notice Amadalavalasa
Co-operative Agricultural Industrial Society Ltd.
Tavanappa
Patravali AIR 1943 Bombay 237. All the three decisions are
single Bench decisions. Suffice it to observe that the first two decisions are
more or less ad hoc decisions which do not notice other decisions and the
general trend of judicial opinion. The view propounded therein does not appeal
to us. The Bombay decision does not lay down any
general proposition of law and proceeds on its own facts.
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.
The
trial court was therefore right in rejecting the application.
The
District Judge in exercise of its revisional jurisdiction could not have
interfered with the order of the trial court. The illegality in exercise of
jurisdiction by the District Court disposing of the revision petition was
brought to notice of the High Court and it was a fit case where the High Court
ought to have in exercise of its supervisory jurisdiction set aside the order
of the District Court by holding the application filed by the respondent as
incompetent and hence not entertainable. We need not examine the other question
whether a sufficient cause for condoning the delay in moving the application
for leave of the court to furnish security for performance was made out or not
and whether such an application moved at a highly belated stage and hence not
being a 'previous application' was at all entertainable or not.
The
appeal is allowed. The impugned orders of the District Court and the High Court
respectively dated 22.4.1999 and 18.5.1999 are set aside and the order of the
trial court dated 15.11.1998 is restored. No order as to the costs.
Back