Back
IN THE HIGH COURT OF ALLAHABAD
Anjani Kumar, J.
VINOD BANSAL - Appellant
Versus
ADDITIONAL DISTRICT JUDGE (COURT NO. 8), BULANDSHAHR - Respondents
C. M. W. P. 14728 Of 2002
Decided On : 04/16/2002
Small Cause Courts Act - Tenant's Application for Setting Aside Ex Parte Decree - Code of Civil Procedure, 1908 - Section 17 of Provincial Small Cause Courts Act, 1887
Fact of the Case:
The tenant filed a writ petition under Article 226 of the Constitution of India against the order of eviction passed by the landlord under the Provincial Small Cause Courts Act, 1887. The tenant had filed an application under Order IX, Rule 13 of the Code of Civil Procedure, 1908, for setting aside the ex parte decree.
Finding of the Court:
The revisional court set aside the trial court's order, stating that the tenant had failed to comply with the requirement of Section 17 of the Act by not depositing the decretal amount as directed by the trial court.
Issues: The main issue was whether the tenant had complied with the requirement of Section 17 of the Act by depositing the decretal amount as directed by the trial court.
Ratio Decidendi: The court relied on the decision of the Apex Court in Kedarnath v. Mohan Lal Kesarwani, which held that an application seeking to set aside an ex parte decree must be accompanied by a deposit in the court of the amount due from the applicant under the decree. The court emphasized the mandatory nature of the provision and the discretion of the court to dispense with the deposit.
Final Decision: The court dismissed the writ petition, stating that the order passed by the revisional authority did not warrant any interference under Article 226 of the Constitution of India.
( 1 ) THIS writ under Article 226 of the Constitution of India filed by the tenant-petitioner is directed against the order dated 19. 3. 2002, passed by the respondent No. 1 (Annexure-6 to the writ petition) in S. C. C Revision No. 59 of 1997 under the Provincial Small Cause Courts Act. 1887.
( 2 ) THE facts giving rise to the filing of the present writ petition are that landlord filed a suit for eviction of the petitioner-tenant after service of notice under Section 106 of the Transfer of property Act. 1882.
( 3 ) THIS suit was decreed ex pane on 19th September, 1995. The petitioner filed an application under Order IX. Rule 13 of Code of Civil Procedure. 1908, for setting aside the aforesaid ex parts decree.
( 4 ) SECTION 17 of Provincial Small Cause Courts Act. 1887. (hereinafter called the act), provides that the procedure prescribed in the Code of Civil Procedure, 1908 (5 of 1908), shall, save in so far as is otherwise provided by the 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.
( 5 ) THE provision of aforesaid Sub-section (1) of Section 17 of the Act is reproduced below :
" 17. Application of the Code of Civil Procedure.-- (1) The procedure prescribed in the Code of civil Procedure, 1908 (5 of 1908), shall save in so far as is otherwise provided by the 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 parts or for a review of judgment shall, at the time of presenting his 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. "
( 6 ) IN this view of the matter, petitioner has filed an application on 24th October, 1996 [annexure-4 to the petition) along with application under Order IX. Rule 13, Code of Civil procedure. 1908, praying that he may be permitted to furnish security for the decretal amount.
( 7 ) FROM the order of the trial court dated 131h November. 1997, passed on the petitioners application under Order IX. Rule 13, Code of Civil Procedure, 1908, it is clear that the petitioners application for furnishing security, which was numbered as 8-Ga, was not accepted by the trial court and the Court directed the petitioner to deposit decretal amount in cash.
( 8 ) AFTER filing of the aforesaid application and after passing the aforesaid direction to the petitioner to deposit the decretal amount in cash, petitioner moved an application which was numbered as 10-Ga that the amount of Rs. 14,865 has already been deposited, therefore, petitioner may be permitted to furnish security. No order was passed on the application. The trial court accepted the averments of the petitioner that he has complied with the order and ultimately allowed the application of the petitioner.
( 9 ) AGGRIEVED by the order, landlord preferred the Revision No. 59 of 1997. The argument advanced before the revisional court was that petitioner has not complied with the order under the provision of Subsection (1) of Section 17 of the Act, 1887. The trial court had passed the order on the petitioners application No. 8-GA directing the petitioner-tenant to deposit the amount of decree in cash. Petitioner has failed to deposit the said amount. Petitioner has filed another application number 10-Ga on which no order was passed. In view of aforesaid circumstances, the revisional court held that since the petitioner has failed to comply with the requirement of Sub-section (1) of Section 17 of the Act and his application was wrongly entertained and deserves to be dismissed. The revisional court, therefore, set aside the order of the tri
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
