VERY IMPORTANT POINT
Proviso to Section 17 of Provincial Small Cause Courts Act, 1887 is mandatory in charactor.

Headnote:(i) Provincial Small Cause Courts Act, 1887-Proviso to Section 17-The jurisdiction to entertain and hear an application to set aside a decree passed ex-parte by Court of Small Causes-Proviso imposing condition as to deposit decreetal amount or give previous security-Whether mandatory or directory (mandatory)-Case law discussed.
       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 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. (Para 9)
       (ii) U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 - Section 20(2)(a) - Ex-parte decree by court of small causes-Executed -C.P.C. 1908-Order 9 Rule 13-Application to set aside ex-parte decree-Proviso to Section 17 of Provincial Small Cause Courts Act not complied-Rejected by Trial Court-Delay condoned by Revisional Court, upheld by High Court-Appeal against -Whether Revisional Court and High Court were right? (No) - Appeal allowed.
       Held : 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. (Paras 10, 11 & 12)

JUDGMENT

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.

2. 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.

3. 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 CPC 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.

4. 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 t

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2002 Supreme(SC) 29

VERY IMPORTANT POINTProviso to Section 17 of Provincial Small Cause Courts Act, 1887 is mandatory in charactor.

Cases Referred (2)

VERY IMPORTANT POINT
Proviso to Section 17 of Provincial Small Cause Courts Act, 1887 is mandatory in charactor.