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IN THE HIGH COURT OF ALLAHABAD
M. L. BHAT
RAM CHANDRA - Appellant
Versus
IXTH ADDITIONAL DISTRICT JUDGE, VARANASI - Respondents
C. M. W. P. 19015 Of 1988
Decided On : 04/09/1991
SMALL CAUSE COURTS ACT - SECTION 17 - DEPOSIT OF RENT - VALIDITY - DEPOSIT MADE IN DIFFERENT PROCEEDINGS IN THE NAME OF DIFFERENT PERSONS - NOT VALID DEPOSIT - APPLICATION FOR SETTING ASIDE EX PARTE DECREE - NOT MAINTAINABLE.
Fact of the Case:
The petitioner, a tenant, filed an application under Order 9, Rule 13 of the Code of Civil Procedure (CPC) to set aside an ex parte decree for ejectment passed against him. The petitioner claimed to have deposited rent under Section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Act No. 13 of 1972) in different proceedings between him and the erstwhile landlord. The respondent, the new landlord, opposed the application, arguing that the deposit was not valid as it was not made in his name and that the petitioner had not complied with the proviso to Section 17 of the Small Cause Courts Act, which requires an applicant for setting aside an ex parte decree to deposit the amount due under the decree or give security for its performance.
Finding of the Court:
The court found that the petitioner had not deposited the full amount due under the decree in the name of the respondent and that he had not obtained permission from the court to deposit the rent in different proceedings. The court held that the deposit made by the petitioner was not a valid deposit under Section 17 of the Small Cause Courts Act and that the application for setting aside the ex parte decree was not maintainable.
Issues: 1. Whether the deposit made by the petitioner in different proceedings in the name of different persons was a valid deposit under Section 17 of the Small Cause Courts Act? 2. Whether the petitioner had complied with the proviso to Section 17 of the Small Cause Courts Act by depositing the amount due under the decree or giving security for its performance?
Ratio Decidendi: The court held that the deposit made by the petitioner in different proceedings in the name of different persons was not a valid deposit under Section 17 of the Small Cause Courts Act. The court reasoned that the proviso to Section 17 requires an applicant for setting aside an ex parte decree to deposit the amount due under the decree or give security for its performance, and that the petitioner had not complied with this requirement. The court further held that the application for setting aside the ex parte decree was not maintainable.
Final Decision: The court dismissed the petitioner's writ petition, holding that the impugned order of the lower court was not erroneous and that there was no infirmity in the order. The court also vacated the interim orders passed in the case and directed the petitioner to pay any amount deposited by him to the respondent if he had not already withdrawn it.
( 1 ) AN ex parte decree for ejectment came to be passed against the petitioner-tenant on 14-3-84 by the trial Court. On 3-7-84 the petitioner filed an application under O. 9, R. 13, C. P. C. for setting aside the ex parte decree dated 14-3-84. The application of the petitioner for setting aside the ex parte decree has been rejected by the Court below. The petitioner challenges the said order through the medium of this writ petition.
( 2 ) IT is averred by respondent No. 3 that the arrears of rent were claimed in the suit from 1-4-83 to 15-9-83 at the rate of Rs. 32/per month. The property seems to have been purchased by the respondent No. 3 on 30-3-83 Total rent from the date it fell due to the date of institution of the application under O. 9, R. 13, C. P. C. comes to Rs. 484. 00. The petitioner is said to have deposited Rs. 271. 00-only. The petitioner is said to have deposited Rs. 1,228. 00 under S. 30 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter referred to as Act No. 13 of 1972. The said proceedings are pending between the erstwhile owner of the property and the petitioner. Respondent No. 3 is not party to those proceedings.
( 3 ) RESPONDENT No. 3 supported the judgment of the Court below on the ground that the petitioner had deposited only Rs. 271. 00- on account of decretal amount, out of Rs. 484. 00 which was outstanding against him up to 3-7-84 when the application under 0. 9, R. 13, C. P. C. was filed by him. The deposit is said to be not valid. Therefore, in terms of S. 17 of the Small Cause Courts Act, the Court below was perfectly right in dismissing the application of the petitioner for setting aside ex parte decree. It is further stated that any deposit made by the petitioner in different proceeding in the name of different persons cannot be said to be valid deposit by the petitioner so as to get the benefit of S. 17 of the Small Cause Courts Act. It is averred that rent was payable to respondent No. 3. Therefore, deposit could be made in his name after satisfying the conditions of S. 30 of the Act No. 13 of 1972. There was no refusal on the part of respondent No. 3 to accept the rent which was tendered to him. Therefore, S. 30 of Act No. 13 of 1972 could not come into play against respondent No. 3. That being so the theory of deposit set up by the petitioner is of no consequence because the petitioner has not deposited any amount in the name of respondent No. 3 and has not tendered any amount to him.
( 4 ) THERE have been some mis-calculations about the amount of arrears of rent by the Court below. Learned counsel for the parties agreed before me that the rent due was from 15-9-83 to 3-7-84 i. e. Rs. 308. 00 and the arrears up to 15-9-83 Rs. 176. 00, in all Rs. 484. 00 only were due and payable to respondent No. 3 on account of rent. Admittedly against this amount Rs. 271. 00- has been deposited. Balance amount has not been deposited in the name of respondent No. 3. If any amount is deposited by the petitioner that is not in the name of respondent No. 3 nor is that before the filing of the application for setting aside the ex parte decree.
( 5 ) PROVISO to S. 17 of the Small Cause Courts Act reads as follows:-"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 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 ) AS stated above, the petitioner neither deposited the amount due from him under the decree nor give any security for the performance of the decree after obtaining permission from the Court. The proviso to S. 17, therefore, has not been complied with by the petitioner in this case.
( 7 ) THE petitioner submitte
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