The timing and maintainability of applications under the Provincial Small Cause Court Act, 1887, were crucial in determining the court's decision.

JUDGMENT :

1. Heard learned counsel for the petitioner and Sri Rashtrapati Khare, learned counsel for the respondents and perused the record.

2. Present petition has been filed challenging the impugned order 14.5.2019 passed by the Judge, Small Causes Court, Bareilly and the order dated 25.2.2020 passed by the revisional Court.

3. By the impugned order dated 14.5.2019 passed by the trial Court the application filed under Section 17 of Provincial Small Cause Court Act, 1887 (hereinafter referred to as the 'Act') has been rejected on the ground that the application was not maintainable in view of proviso to Section 17 of the Act. Revision filed against the same was also dismissed by the lower revisional court.

4. Challenging the impugned ordered, submission of learned counsel for the petitioner is that the application under Section 17 of the Act was filed along with the application under Order 9 Rule 13 CPC on the same date i.e. 5.10.2017. He submits that there is no dispute for this fact. Placing reliance on paragraph 9 of a decision of Hon'ble Apex Court in Kedarnath vs. Mohan Lal Kesarwani & Ors., 2002 (1) ARC 186, it is submitted that the application filed under Section 17 of the Act along with application under Order 9 Rule 13 CPC would be maintainable as it has been observed by Hon'ble Apex Court that it may be filed at any time upto the time of presentation of the application for setting aside ex parte decree or for review and the Court may treat it as a previous application. Paragraph of the said judgment in Kedar Nath (supra) is quoted as under:

"9. 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 upto the time of presentation of the 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."

(Emphasis supplied)

5. Per contra, Sri Rashtrapati Khare, learned counsel for the respondents has supported the impugned orders and submits that application under Section 17 of the Act must have been filed previously i.e. before the filing of the application under Order 9 Rule 13 CPC.

6. Pure legal question is involved in the present case and exchange of affidavits is not necessary in this case as necessary facts are not in dispute. With the consent of parties present petition is being disposed of at the admission stage itself.

7. I have considered the rival submissions and perused the record.

8. It is not in dispute that both the applications were filed on the same date i.e. 5.10.2017. In paragraph 9 of Kedarnath (supra) it has been observed that application under Section 17 of the Act must be on record at the time upto the time of presentation of application for setting aside decree and it is the discretion of the court to treat it as previous application. It is not in dispute that both the applications were filed simultaneously. In Zulfiquar Hussain vs. Madan Gopal Chopra, 2012 (1) ARC 311, this Court has he