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Shri Rishi Kumar Jalan v. Ivth Addl.Distt.Judge, Bulandshahr And Another - WRIT - A No. 39318 of 1998  RD-AH 16394 (19 September 2006)
Civil Misc. Writ Petition No.39318 of 1998
Shri Rishi Kumar Jalan
IV Additional District Judge and another
Hon. Sanjay Misra, J.
Heard Sri Ashok Bhatnagar, learned counsel for the petitioner and learned counsel appearing on behalf of the respondents.
By means of this writ petition, the petitioner challenges the judgment and order dated 17.10.1998 passed by IV Addl. District Judge, Bulandshahar in Revision No.56 of 1997.
It is the contention of learned counsel for the petitioner that deposit under section 17 of the Provincial Small Causes Court Act is mandatory and in absence of any order by the court for extending the time to deposit the amount the defendant ought to have deposited the said amount along with his application under Order 9 Rule 13 CPC. The trial court has dismissed the application on the ground that neither there was deposit of the decretal amount nor there was any application for condonation of delay in depositing the amount. The fact before the trial court was that the deposit of the required amount was made in a period of nearly four years without any order of the court nor any application for permission to deposit the amount or for condonation of delay was made. The revisional court has set aside the order of the trial court on the ground that the provisions of section 17 of the Act are remedial in nature and the delay in depositing the amount should have been condoned.
Learned counsel for the petitioner has placed reliance on the decision in the case of Kedar Nath Vs. Mohan Lal Kesarwani and others reported in 2002(1) ARC 186 and has contended that when there was no application made on behalf of the defendant and the trial court rejected the application under Order 9 Rule 13 CPC the
revisional court ought not to have interfered with the order of the trial court. In so far as the conclusion of the revisional court that the provisions of section 17 of the Act are remedial in nature and the delay in deposit should have been condoned it could have applied only if there was an application on behalf of the defendants for extending the time in depositing the amount even after the date on which the application under Order 9 Rule 13 CPC had been made. In absence of such an application or any order of the court the deposit required to be made under the proviso to section 17 of the Act is mandatory. The trial court has rightly rejected the application. The revisional court has erred in exercising its jurisdiction by setting aside the order of the trial court and allowing the application under Order 9 Rule 13 CPC even through the mandatory deposit was not made in accordance with section 17 of the Act.
The writ petition is allowed. The judgment and order dated 17.10.1998 passed by the revisional court is set aside. No order is passed as to costs.
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