Kamal Kumar Gupta vs Ajay Kumar Gupta

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(All) 1172

IN THE HIGH COURT OF ALLAHABAD
Ajit Kumar, J.
Kamal Kumar Gupta - Revisionist
Versus
Ajay Kumar Gupta - Opposite Party
S.C.C. Revision No. 215, 245, 246 of 2014
Decided On : 11-11-2022

Advocates Appeared:
For the Revisionist : T.A. Khan.
For the Opposite Party : Manish Goyal, Akanksha Sharma.

Headnote:
Constitution of India, 1950 – Article 226/227 – Civil Procedure Code, 1908 – Order IX Rule 13 – Section 151 – Indian Limitation Act, 1963 – Section 5 –Provincial Small Cause Courts Act, 1887 – Section 17 – All these three revisions arise out of suit proceedings of S.C.C. Case – S.C.C. Revision have been filed, tenant of plaintiff/ respondent challenging order passed by Judge, Small Causes rejecting miscellaneous application filed by petitioner bearing paper no. 41, whereby, he had sought further time to permit him to deposit remaining amount as per order passed maintaining application under Order IX Rule 13 of Code of Civil Procedure, 1908 and allowing same by order – Held, Court was justified in recalling the ex parte judgment and decree and therefore, order passed is sustained – Although issue qua nature of surety as personal bond and security submitted and any deficiency therein was not raised as by any oral argument, nor at time when it was being accepted, but in my considered view document that has to be filed by way of security has to be original one – No amount of security or mortgage for that matter can be created in absence of an original or certified copy of an instrument qua land and therefore, it would be necessary for tenant to deposit original agreement for sale before trial court by way of security – Court do not find any requirement of law for furnishing a personal bond – Submission of a collateral security in terms of deposit of title deed or any registered agreement with a right to property, is sufficient – Personal affidavit in support of security would do needful – Ordered Accordingly.

JUDGMENT :

(Ajit Kumar, J.)

1. Heard Sri T.A. Khan, learned Advocate appearing for the revision applicant in S.C.C. Revision Nos. 215 of 2014 and 245 of 2014 and Sri Manish Goyal, learned Senior Advocate assisted by Ms. Akanksha Sharma, learned counsel for the revision applicant in S.C.C. Revision No. 246 of 2014.

2. All these three revisions arise out of suit proceedings of S.C.C. Case No. 11 of 2011. The S.C.C. Revision No. 215 of 2014 have been filed by Kamal Kumar Gupta, tenant of plaintiff/ respondent Ajay Kumar Gupta challenging the order passed by Judge, Small Causes dated 02.04.2014 rejecting the miscellaneous application filed by the petitioner bearing paper no. 41, whereby, he had sought further time to permit him to deposit the remaining amount as per order passed on 27.02.2014 maintaining application under Order IX Rule 13 of Code of Civil Procedure, 1908 (hereinafter to be referred as 'CPC') and allowing the same by the order.

3. The S.C.C. Revision No. 245 of 2014 has been filed again by Kamal Kumar Gupta, the tenant challenging the order dated 06.03.2014 rejecting the miscellaneous application no. 2 of 2013, whereby, he had prayed for extension of time granted earlier by the court on 27.02.2014.

4. S.C.C. Revision No. 246 of 2014 has been filed by the landlord Ajay Kumar Gupta challenging the order dated 27.02.2014, whereby, the application of the tenant filed under Order IX Rule 13 CPC was allowed at a cost of Rs. 500/-by setting asiding the ex parte judgment and decree dated 23.08.2012.

5. The controversy therefore, in the above three S.C.C. revisions centres around the maintainability of miscellaneous application of the applicant to deposit the decretal amount which is mandatorily required under Section 17 of the Provincial Small Cause Courts Act, 1887 (hereinafter to be referred as 'Act, 1887') in order to maintain an application under Order IX Rule 13 CPC for setting asiding the ex parte judgment and decree and if allowed and maintainability of time extension application. I proceed to decide all the three revisions by this common order.

6. Before I proceed to examine the legal aspects, I find it necessary to refer to certain facts of the case in hand. The landlord/ respondent Ajay Kumar Gupta (hereinafter referred as 'landlord) instituted a Small Cause Suit being S.C.C. Case No. 11 of 2012 for recovery of arrears of rent and ejectment of Kamal Kumar Gupta (hereinafter referred as 'tenant'). This suit stood decreed by an ex parte judgment and decree dated 23.08.2012. The tenant moved an application under Order IX Rule 13 CPC on 16.11.2012 and the same day he moved an application that he may be permitted to deposit security against the decretal amount that was Rs. 3,25,000/-. The said application filed under proviso to Section 17(1) of the Act, 1887, was contested by the decree holder-landlord by moving objection on 12.03.2013. The trial court having considered the miscellaneous application filed by the petitioner under Order IX Rule 13 CPC along with an application filed under proviso to Section 17(1) of Act, 1887 on merits and having discussed the law on the point and meeting the arguments raised by respective parties, allowed the application filed under Order IX Rule 13 CPC at a cost of Rs. 500/-and directed for payment of remainder amount of decree i.e. Rs. 24,287/-along with Rs. 500/-within a week. It is worth noticing here that the petitioner had deposited the entire decretal (cash and security) amount except for Rs. 24,287/- that was argued and held to be due towards expenses of execution as per cost mentioned therein.

7. It appears that the petitioner could not deposit the above amount as directed by the trial court under order dated 27.02.2014, so he moved a miscellaneous application to extend time of one week provided under order dated 27.02.2014 and the said application came to be rejected with one line order that time extension prayed for cannot be allowed. The second miscellaneous application was