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1988 Supreme(All) 522
IN THE HIGH COURT OF ALLAHABAD
S. D. AGARWALA
MOHAN LAL - Appellant
Versus
ADDL.DIST.JUDGE, NAINITAL - Respondents
C. M. W. P. 3430 Of 1982
Decided On : 10/28/1988
R.H.Zaidi, RAJESH TANDON
A court cannot dismiss an application under Order IX Rule 13 CPC for non-compliance with Section 17 of the Provincial Small Causes Court Act without giving the applicant an opportunity to deposit the deficit amount, especially when the applicant has substantially complied with the requirements of the Act and there is no intention to avoid paying the decretal amount.
Headnote:
PROVINCIAL SMALL CAUSES COURT ACT - SECTION 17 - ORDER IX RULE 13 OF THE CODE OF CIVIL PROCEDURE - SUFFICIENCY OF SECURITY - INTERPRETATION AND APPLICATION.
Fact of the Case:
Petitioners filed an application under Order IX Rule 13 of the Code of Civil Procedure (CPC) to set aside an ex parte decree against them. They had deposited an amount as security, which was accepted by the court. However, the court later found that the security was insufficient and dismissed the application. The petitioners challenged this order, arguing that they should have been given an opportunity to deposit the deficit amount.
Finding of the Court:
The court held that the trial court erred in dismissing the application under Order IX Rule 13 CPC without giving the petitioners an opportunity to deposit the deficit amount. The court found that the petitioners had substantially complied with the requirements of Section 17 of the Provincial Small Causes Court Act and that there was no intention on their part to avoid paying the decretal amount.
Issues: 1. Whether the trial court erred in dismissing the application under Order IX Rule 13 CPC without giving the petitioners an opportunity to deposit the deficit amount? 2. Whether the petitioners had substantially complied with the requirements of Section 17 of the Provincial Small Causes Court Act?
Ratio Decidendi: 1. The court held that it is a settled principle of law that no party shall be made to suffer because of a wrong order passed by any court. In this case, the trial court had initially accepted the security deposited by the petitioners. It was not open to the court to subsequently dismiss the application under Order IX Rule 13 CPC without giving the petitioners an opportunity to deposit the deficit amount. 2. The court found that the petitioners had deposited a substantial amount as security, which was accepted by the court. The court also noted that the petitioners had filed the application under Order IX Rule 13 CPC promptly after the ex parte decree was passed. The court concluded that there was no intention on the part of the petitioners to avoid paying the decretal amount.
Final Decision: The court allowed the petition, quashed the orders of the trial court and the revisional court, and remanded the matter to the trial court for decision of the suit on merits.
( 1 ) THIS is a petition under Art. 226 of the Constitution of India. A Suit No. 48 of 1979 was filed by Khurshad Ali against Mohan Lal and Anil Kumar in the Court of Judge Small Causes for ejectment and recovery of rent and damages. The property in dispute was a shop situated in Darau Road, Kichha, district Nainital.
( 2 ) THE suit was decreed ex parte by an order dated 9th May, 1980. The operative portion of the decree is as follows : -"plaintiffs suit for ejectment of defendants from shop in suit; for recovery of Rs. 147. 50 as arrears of rent and for recovery of pendente lite and future damages at the rate of Rs. 75/p. m. is decreed with costs ex parte. "
( 3 ) ON May 15, 1980, only five days after the suit was decreed ex parte, the tenants Mohan Lal and Anil Kumar, who are petitioners in this Court filed an application under O. IX, R. 13 of the Code of Civil Procedure (hereinafter referred to as the C. P. C.) for setting aside the ex parte decree. On that very date an application was made by the petitioners praying that the amount already deposited by them in the Court be treated as security under S. 17 of the Provincial Small Causes Court Act. This application was allowed by the Court and the following order was passed :"allowed. The amount which has already been deposited by defendant is more than the decretal amount. In my opinion that amount is a sufficient security. "
( 4 ) ON the application under O. IX, R. 13, C. P. C. notices were issued. After the issue of the notice, the decree-holder respondent appeared to object to the setting aside of the ex parte decree. By an order dated 6th Sept. , 1980, the application under O. IX, R. 13 of the C. P. C. was dismissed on the ground that there was no compliance of the provisions of S. 17 of the Provincial Small Causes Court Act, as instead of depositing Rs. 1143. 50 paise, the judgment-debtor had deposited only Rs. 1100/. The order dated 6th Sept. 1980 was challenged by the petitioners by way of a revision before the District Judge, Nainital. The revision came up for hearing before the 1st Additional District Judge, Nainital, who dismissed the same and upheld the judgment given by the Judge Small Causes Court rejecting the application of the petitioners under O. IX, R. 13 of the C. P. C. 4a. Aggrieved, the petitioners have now filed the present petition in this Court challenging the orders dated 6-9-1980 and 16th March; 1982 passed by the revisional Court.
( 5 ) I have heard learned counsel for the parties. 5a. Learned counsel for the petitioners has raised three contentions before me. His first contention is that by an order dated 15th May 1980, the Judge Small Causes Court had held that the amount deposited by the petitioners was sufficient security and, consequently, it was not open to the same Court at the time of considering the application under O. IX, R. 13 of the C. P. C. to recall its earlier order and dismiss the application under O. IX, R. 13 of the C. P. C. on the ground of non-compliance of S. 17 of the Provincial Small Causes Court Act. His second contention is that in any case even if the Judge Small Causes Court came to the conclusion that there was some deficit in the deposit made by the petitioners, an opportunity should have been granted to the petitioners to deposit the same and the last contention raised by the learned counsel is that in any case the deposit, according to the Court itself, was short of by Rs. 43. 50 paisa only, there was no intention on the part of the petitioners not to pay the said amount and there was sufficient compliance of the provision of S. 17 of the Provincial Small Causes Court Act and as such, the Courts below have acted illegally with material irregularity in exercise of their jurisdiction in dismissing the application under O. IX, R. 13 of the C. P. C. on the ground of non-compliance of the aforesaid Section.
( 6 ) IN so far as the first contention is concerned, the order dared 15th May, 1980, accepting the
