Compliance with Section 17 of Act 13 of 1972 is mandatory for setting aside an ex parte decree in a small causes court case.

K. N. Ojha, J.—Civil Revision No. 163 of 2004 is preferred against the order dated 18.10.2004 passed by Incharge District Judge, Etah in Misc. Case No. 9 of 2004 arising out of small causes suit (SCC Suit) No. 10 of 2002 and order dated 28.9.2004 passed by the District Judge, Etah in s.C.c. Suit No. 10 of 2002 Smt. Vishwa Mohini v. Smt. Khilla Devi alias Manju Singh.

2. Since both revisions are related to each other therefore they are being finally disposed of by a common order.

3. Heard Sri Sashi Nandan learned senior counsel for the revisionist assisted by Km. Pooja Agarwal, advocate and Sri Swapnil Kumar learned counsel for the respondents.

4. The fact of the case is that Smt. Vishwa Mohini filed suit for arrear of rent and ejectment bearing S.C.C. No. 10 of 2002, Smt. Vishwa Mohini v. Smt. Khilla Devi. Smt. Vishwa Mohini claimed herself to be the owner and landlady of the house in question and alleged to have purchased the house from one Naresh Chand Saxena and gave information to the tenant Smt. Khilla Devi who according to the landlady was tenant in the said premises on rent of Rs. 700 per month. The case of defendant Smt. Khilla Devi was that per month rent was Rs.300 only which she started to deposit in Court under Section 30 Clause I of U. P. Act No. 13 of 1972 (U. P. Urban Building Regulation of Letting, Rent and Eviction Act). The plaintiff landlady served the defendant with a notice but the premises was not vacated after the expiry of the period. Hence the suit for ejectment, arrear of rent and mesne profit was filed.

5. Smt. Khilla Devi contested the suit by filing affidavit of the witness but did not appear to cross-examine the witness of the plaintiff landlady nor adduced her evidence in defence. Therefore the argument of the plaintiffs counsel was heard as the case proceeded ex parte. The suit for arrear of rent and ejectment was decreed ex parte on 28.9.2004 by the District Judge/Judge, Small Causes Court, Etah. Two months time was allowed to vacate the premises in suit. The ex parte decree was for arrear of rent of Rs. 22,942.50 p and for pendente lite and future mesne profit until actual eviction of the defendant. After the ex parte judgment dated 28.9.2004 was passed Civil Revision No. 366 of 2004, Smt. Khilla Devi v. Vishv Mohini, was preferred before this Court.

6. Before the ex parte decree was passed on 28.9.2004 the case was fixed on 12.7.2004 for hearing when the defendant did not appear therefore the argument of the plaintiff was heard and judgment was reserved. Before the ex parte judgment was delivered on 28.9.2004 the defendant moved an application on 15.9.2004, for setting aside ex parte order dated 12.7.2004. The application was rejected and subsequently ex parte judgment was delivered.

7. After the ex parte judgment was delivered on 28.9.2004 application was moved under Order IX, Rule 13, C.P.C. read with Section 151, C.P.C. and Section 34 of the Act No. 13 of 1972. On 29.9.2004, the respondent landlady raised objection that deposit or furnishing of security was mandatory under Section 17 of the Provincial Small Causes Court Act and no such application was moved by the defendant-tenant for furnishing security nor the condition of deposit of decretal amount under Section 17 of Provincial Small Causes Court Act (the Act) was complied with, therefore, the application was not maintainable. The application for permission to furnish security was moved on 4.10.2004. The application was rejected on the ground that neither deposit of decretal amount was made nor application for deposit of security was moved in Court for setting aside the ex parte decree. It was held that the provision of Section 17 of the Act was mandatory which was not complied with and therefore application moved under Order IX, Rule 13, C.P.C. was not maintainable. Reliance was placed on the pronouncement made by Hon’ble the Apex Court in Kedarnath v. Mohan Lal Kesarwari and others, 2002 (1) AWC 502 (SC) : 2002 (1) ARC 186 .