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RADHEY SHYAM & OTHERS versus MUKUND LAL & OTHERS

High Court of Judicature at Allahabad

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Radhey Shyam & Others v. Mukund Lal & Others - CIVIL REVISION No. - 40 of 2006 [2007] RD-AH 16316 (4 October 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

COURT NO.6

CIVIL REVISION NO. 40 OF 2006

Radhey Shyam and others.......................................................Revisionists

Versus

Mukund Lal and others..........................................................Respondents

Connected with-

CIVIL REVISION NO. 286 OF 2004

Kalloo Ram and others............................................................Revisionists

Versus

Mukund Lal and others...........................................................Respondents

*******

Hon.Tarun Agarwala, J.

A suit for eviction and for possession was filed before the Judge Small Causes Court. Since the defendant did not appear, the Court, by an order dated 10.2.2003, proceeded exparte. Subsequently, an application under Order 9 Rule 13 read with Section 17 of the Provincial Small Causes Court Act was filed by the defendant. After more than 2 years of the filing of the said application, the defendant filed an application dated 9.12.2005 praying that he may be permitted to furnish a security instead of depositing the rent in cash as per the provisions of Section 17 of the Provincial Small Causes Court Act. This application was rejected by an order dated 10.2.2003 against which a Civil Revision No.40 of 2006 has been filed before this Court. Against the exparte decree dated 10.2.2003, the applicant also filed Civil Revision No.286 of 2004 before this Court. Consequently, both the matters are being decided together.

Heard Sri S. Ahmed holding the brief of Sri Mansoor Ahmad, the learned counsel for the applicants and Sri Namwar Singh the learned counsel for the plaintiff landlord in Civil Revision No.40 of 2006 and Sri V.K. Jaiswal, the learned counsel for the plaintiff-respondents in Civil Revision No.286 of 2004.

The learned counsel for the applicant submitted that the provisions of Section 17 is not mandatory and is only directory and that only a duty is cast upon the Court to ensure that on the date of allowing the application under Order 9 Rule 13 of the C.P.C., the entire decretal amount has been deposited or security in lieu thereof has been furnished. The learned counsel submitted that the provisions of Section 17(1), especially the provisio, has to be interpreted liberally. In support of his submission the learned counsel has placed reliance upon a decision of this Court in Suresh Chand vs. VII th Additional District Judge, Muzaffarnagar and other, 1991(2)ARC 545 wherein the Court held that the provisions of Section 17 of the Provincial Small Cause Court Act was only procedural in nature and that the said provision was required to be interpreted in such a manner so as to advance justice to facilitate to meet its ends and that the provision was required to be liberally construed and further the Court was only required to see that substantial compliance of the Section had been made. The learned counsel further placed reliance upon another decision of this Court in Mohd. Javed vs. Waqf Kabristan and Masjid, Mohalla Urdu Adar, Etawah and others, 2007(67)ALR 40, wherein the Court held-

"This Court on numerous occasions had held that section 17 of the Provincial Small Causes Court Act is procedural in nature and is not mandatory, Reference can be made to Khurshid vs. Ist Additional District Judge. It has been held that intention of provision to section 17 is that when an ex-parte decree is sought to be set aside, the judgment-debtor has to deposit either, in cash, the amount due under the decree or give due security for the performance of the decree. The intention of the proviso is to secure the decree holder. This provision has been enacted in order that the judgment-debtors, may not be delaying the proceedings and getting them decided ex-parte, ultimately, adversely affect the decree holder because of the said delay. The further intent of this proviso is that before an application for setting aside an exparte decree is considered either the applicant deposits, in cash, or furnishes security. It is not the intention that even if the judgment-debtor deposits in cash and security then too, his application for setting aside the decree be not considered. In the circumstances, the use of the 'previous' application in the provision is not mandatory but only directory. What the Court has to see at the time of examining the application for setting aside the exprte decree, is to ensure that either the decretal amount has been deposited in cash or security has already been furnished. The making of the application for furnishing security before the making of the application for setting aside the exparte decree is not a mandatory requirement."

In my opinion the judgments cited by the learned counsel for the applicant is no longer a good law are per incurium in view of the decision of the Supreme Court in Kedar Nath vs Mohan Lal Kesarwani and others, 2002 ACJ 145, wherein the Supreme Court held that the provisions of Section 17 of the Provincial Small Causes Court Act is not only mandatory but the proviso is also mandatory and that the previous application seeking direction of the Court for leave to furnish the security has to be filed prior or at the time of filing the application under Order 9 Rule 13. The Supreme Court held-

"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 cause 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 provision does not proved for the extent of time by which such application for dispensation may be filed. We think that it may be filed at any time upto 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 view of the aforesaid, it is clear, that the provisions of Section 17 of the Provincial Small Causes Court Act is mandatory and the requirement that a previous application seeking direction of the Court for leave to furnish the security has to be filed either prior to the application for setting aside the exparte order or has to be filed along with the application under Order 9 Rule 13 of the C.P.C.. Non-filing of the said application will render the said application nugatory and the subsequent filing of the application will not cure the initial defect.

In the light of the aforesaid provision, in the present case, I find, that the application under Order 9 Rule 13 of the C.P.C. was filed in the year 2003 and, after more than 2 years, the application to furnish a security under Section 17 of the Act was filed on 9.12.2005. The Court below was justified in holding that since the provisions of Section 17 of the Small Causes Court Act was not complied, the application was not maintainable and had rightly rejected the said application.

In view of the aforesaid, the impugned order does not suffer from any infirmity and is affirmed. The Civil Revision No.40 of 2006 is dismissed.

Since the defendant did not appear, the Court proceeded exparte and, after considering the evidence that was brought on the record, found that the plaintiff had proved his case. The trial court came to the conclusion that the defendant was in arrears of rent and that the rent had not been paid. The trial court consequently decreed the suit for arrears and for eviction of the defendant.

The learned counsel for the defendant submitted that even if the defendant could not appear, the Court while proceeding exparte, ought to have considered the contents of the written statement. The defendant had specifically urged that the plaintiff was not the owner or the landlord of the premises in question and that the defendant had disputed his title and therefore, the court below should have considered this objection even if the Court had proceeded exparte against the defendant. In my opinion, the submission of the learned counsel for the defendant is bereft of merit. The trial court proceeded exparte. The evidence of the plaintiff and other witnesses were taken and thereafter the trial court came to the conclusion that the plaintiff had proved his case and found that the defendant was in arrears of rent. The Court below also found that the defendant could not prove the allegation made in his written statement. In view of the aforesaid, in the opinion of the Court, the suit was rightly decreed by the court below. Consequently, this Court is not inclined to interfere in the impugned order. The Civil Revision No.286 of 2004 is also dismissed.

Dated:4.10.2007

AKJ


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