Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(All) 870

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Neeraj Tiwari, J.
Air Plaza Holding Pvt. Ltd. – Revisionist
Versus
Nitin Malhotra and Another - Opposite Party
S.C.C. Revision No. 45 of 2022
Decided On : 30-05-2022

Advocates Appeared:
For the Revisionist :Sushil Shukla, Ishir Sripat, Sr. Advocate
For the Opposite Party : Ashish Kumar Srivastava

Compliance of Section 17 of Act, 1887 is mandatory before filing of the application under Order IX Rule 13 of CPC, 1908.

Headnote:
PROVINCIAL SMALL CAUSE COURTS ACT, 1887 - SECTION 17 - ORDER IX RULE 13 CPC, 1908 - COMPLIANCE OF SECTION 17 OF ACT, 1887 IS MANDATORY BEFORE FILING OF THE APPLICATION UNDER ORDER IX RULE 13 OF CPC, 1908.
Fact of the Case:

Revisionist-defendant filed an application under Order IX Rule 13 CPC, 1908 to set aside the ex parte decree passed against him. He submitted that he was not liable to pay rent till December, 2019 as per the agreement to lease dated 30.08.2019 and he started paying rent from 10.11.2019 without waiting for the free period. He further submitted that he has already deposited more than the decretal amount to the plaintiffs-respondents and is regularly paying the rent. He also placed reliance on the judgments of this Court in the matters of Waqf Alal Avlad and Ors. Vs. IInd District Judge, Jaunpur and others; Suresh Chand Vs. VII Additional District Judge, Muzaffarnagar and Ors; Masih Das and Ors. Vs. Court of Additional District Judge 13th and Ors.; Quazi Neemat Ullah Vs. 6th Additional District Judge, Gorakhpur and Ors.; Prem Chandra Mishra Vs. Iind Additional District Judge and Ors. Learned counsel for the respondents-plaintiffs vehemently opposed the submissions raised by learned counsel for the revisionist-defendant and submitted that as per Section 17 of Act, 1887, compliance of Section 17 of Act, 1887 is mandatory before filing of the application under Order IX Rule 13 of CPC, 1908. He also placed reliance on the judgments of this Court in the matters of Roshan Lal and others Vs. Rishi Pal Singh and others; Gorakhnath (Dr.) Vs. Judge, Small Causes Court and others; Mohd. Israil and another Vs. Nausaba A Sabari and 5 others; and the latest judgment of Apex Court in the matter of Subodh Kumar Vs. Shamim Ahmad.
Finding of the Court:

The Court held that compliance of Section 17 of Act, 1887 is mandatory before filing of the application under Order IX Rule 13 of CPC, 1908. The Court further held that any deposit made under Section 30(2) of Act, 1997 shall not be adjusted for compliance of Section 17 of Act, 1887.
Issues: Whether compliance of Section 17 of Act, 1887 is mandatory before filing of the application under Order IX Rule 13 of CPC, 1908?
Ratio Decidendi: The Court relied on the judgment of the Apex Court in the matter of Subodh Kumar Vs. Shamim Ahmad, wherein it was held that compliance of Section 17 of Act, 1887 is mandatory before filing of the application under Order IX Rule 13 of CPC, 1908. The Court also held that any deposit made under Section 30(2) of Act, 1997 shall not be adjusted for compliance of Section 17 of Act, 1887.
Final Decision: The Court dismissed the revision petition filed by the revisionist-defendant.

JUDGMENT :

1. Heard Sri Rahul Sripat, learned senior counsel assisted by Sri Sushil Shukla along with Sri Ishir Sripat, learned counsel for the revisionist-defendant and Sri Navin Sinha, learned senior counsel assisted by Sri Ashish Kumar Srivastava, learned counsel for the respondents-plaintiffs.

2. Present revision has been filed challenging the order dated 28.02.2022 passed by Additional District Judge, Court No. 10, Varanasi in Misc. Case No. 389 of 2021 (Air Plaza Holding Pvt. Ltd. Vs. Nitin Malhotra And Another).

3. Learned counsel for the revisionist-defendant submitted that revisionist-defendant is a company incorporated under the Companies Act, 1956 engaged in business of operation of retail outlets of apparel, food, products, FMCG products and other goods throughout India and is currently operating around 500 retail outlet stores in the country. The agreement to lease dated 30.08.2019 was signed by revisionist-defendant and plaintiffs-respondents-plaintiffs for ten years, which provides 60 days of rent free period from the date of possession. The revisionist-defendant entered into possession on 5.10.2019 and was not liable to pay rent till December, 2019. Without waiting for the said free period, he started paying rent from 10.11.2019 and there is no default on his part. Suddenly, he has received notice dated 31.01.2020 terminating the tenancy against the terms and condition of agreement to lease upon which revisionist-defendant has submitted detail reply dated 17.2.2020. Thereafter, plaintiffs-respondents-plaintiffs have filed SCC Suit No. 11 of 2020 before Judge, Small Causes Court/ Additional District and Sessions Judge, Court No. 10, Varanasi. Notices were issued, but the revisionist-defendant could not appear and ultimately, the said suit was allowed by ex parte judgement dated 12.03.2021 accepting the verbatim claim made in plaint. Further, direction was issued to vacate the house in question failing which liberty is given to plaintiffs-respondents to move execution application for eviction and recovery of rent. Judgement was given on 12.03.2021 and decree was prepared on 24.3.2021.

4. Revisionist-defendant has filed application under Order IX Rule 13 Civil Procedure Code, 1908 (in short CPC, 1908) read with Section 17 of The Provincial Small Cause Courts Act, 1887 (hereinafter referred to as “Act, 1887”) dated 26.3.2021 to set aside ex parte decree. He next submitted that application under Order IX Rule 13 CPC, 1908 has been filed prior to preparation of decree, therefore, in paragraph 14 of the application, it is mentioned that no direction for paying any amount is mentioned in the judgement/ decree due to which he has not deposited any amount in compliance of Section 17 of Act, 1887. He next submitted that after going through decree, he has moved application dated 27.9.2021 for compliance of Section 17 of Act, 1887.

5. Learned counsel for the revisionist-defendant has assailed the impugned order basically on three grounds. First ground is taken about limitation and submitted that Apex Court has taken suo motu cognizance vide order dated 23.09.2021 in Misc. Application No. 665 of 2021 alongwith SMW (C) No. 3 of 2020 in which Apex Court has excluded the period from 15.03.2020 till 02.10.2021 for any suit, appeal, application or proceeding, therefore, his application dated 27.9.2021 may be treated filed within time. He may be given the benefit of judgement of Apex Court and be permitted to comply the Section 17 of Act, 1887 by depositing the decretal amount. For ready reference, relevant paragraph of order of Apex Court is quoted below;

“Therefore, we dispose of the M.A. No. 665 of 2021 with the following directions:-

I. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 02.10.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2021, if any, shall become available with effect from 03.10.2021.”

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