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IN THE HIGH COURT OF ALLAHABAD
Neeraj Tiwari, J.
Sanjay Mishra @ Ashu – Petitioner
Versus
Magan Pandey and Another – Respondents
Matters Under Article 227 No. - 2716 of 2023
Decided On : 20-04-2023
Civil Procedure Code,1908 - Order 9 Rule 13 - Section17 Provincial Small Cause Courts Act, 1887 - Section 17 - Eviction - Payment of rent - Application for setting aside ex-parte judgment and decree - Petitioner submitted that plaintiffs-respondents have filed S.C.C. Suit No. for eviction and payment of rent, which was ex parte decided vide order dated - Against that, petitioner-defendant has moved an application which was dismissed in default vide order dated - After dismissal of said application, petitioner-defendant has moved restoration application, which was allowed vide order dated with liberty to ensure compliance of Section 17 of Provincial Small Cause Courts Act, 1887 - Thereafter, petitioner-defendant has moved an application for compliance - Said application was rejected vide order dated on ground that while filing application under Order IX Rule 13 of CPC, he has not complied Section 17 of Act, 1887 and in case treating that he has complied Section 17 of Act, 1887, even though same was not full compliance as full amount has not been deposited - Whether while allowing restoration application, S.C.C. Court can grant liberty to petitioner-defendant to comply Section 17 of Act, 1887 - Whether it is case of part compliance of Section 17 of Act, 1887 or not.
Finding of Court : Application for setting aside ex-parte decree would be dismissed for non compliance of proviso to Section 17 of the Act - It has also been held that any amount deposited after expiry of period of limitation will also be taken into consideration for judging the compliance of the proviso to Section 17 of Act - However, it has also observed that Court can ignore shortfall in deposit of a negligible amount on the principle of deminimis as explained in body of judgment - It has held further that there is no provision conferring power on Court to condone delay in making deposit and provisions of Section 5 of Limitation Act will not be applicable to deposit contemplated under the proviso to Section 17 of the Act - From perusal of same, it is clear that neither application was accompanied by any deposit nor any application has been filed for dispensing with deposit and seeking leave of Court for furnishing such security - In present case too, neither application of petitioner under Order IX Rule 13 of CPC was accompanied alongwith deposit required under Section 17 of Act, 1887 nor having any application to dispense with deposit - Even in restoration application, there is no such prayer to grant permission to comply Section 17 of Act, 1887 - In light of aforesaid judgment, petitioner is not entitled for any relief to comply the provision of Section 17 of Act, 1887 after filing of application under Order IX Rule 13 of CPC read with 151 CPC.
Result : Writ petition dismissed.
JUDGMENT :
1. Heard Sri Sunil Kumar Srivastava, learned counsel for the petitioner and Sri Ramesh Chandra Agrahari, learned counsel for the respondents.
2. Present petition has been filed for challenging the judgment and order dated 13.2.2023 passed by the Additional District Judge, Court No.18, Kanpur Nagar in Misc. Case No. 251 of 2020 (Sanjay Mishra @ Aashu Vs. Magan Pandey and others) arising out of SCC Suit No.99 of 2016 (Magan Pandey and another vs. Sanjay Mishra @ Aashu) whereby application under Order 9 Rule 13 C.P.C. for setting aside ex-parte judgment and decree dated 3.2.2020 has been rejected.
3. Since, only legal question is involved in the present petition, therefore, with the consent of parties without inviting for affidavits, petition is being decided at the admission stage itself.
4. Learned counsel for the petitioner submitted that plaintiffs-respondents have filed S.C.C. Suit No. 99 of 2016 for eviction and payment of rent, which was ex parte decided vide order dated 3.2.2020. Against that, petitioner-defendant has moved an application under Order IX Rule 13 read with Section 151 of CPC on 29.2.2020, which was dismissed in default vide order dated 12.2.2021. After dismissal of the said application, petitioner-defendant has moved restoration application, which was allowed vide order dated 10.3.2022 with liberty to ensure the compliance of Section 17 of Provincial Small Cause Courts Act, 1887 (hereinafter referred to as Act, 1887). Thereafter, petitioner-defendant has moved an application on 6.4.2022 for compliance of Section 17 of Act, 1887. The said application was rejected vide order dated 13.2.2023 on the ground that while filing application under Order IX Rule 13 of CPC, he has not complied the Section 17 of Act, 1887 and in case treating that he has complied the Section 17 of Act, 1887, even though same was not the full compliance as full amount has not been deposited.
5. Learned counsel for the petitioner assailed the impugned order on two grounds; First of all, Court itself while allowing the restoration application, granted permission to ensure the compliance of Section 17 of Act, 1887, therefore, there is no occasion for the Court to reject the application for non compliance of Section 17 of Act, 1887. Secondly, in case of part compliance, petitioner-defendant may have been given liberty for remaining compliance to make the deficiency good.
6. In support of his contention, he has placed reliance upon the judgment of Apex Court as well as this Court in the cases of Shyam Kumar Gupta & Ors. vs. Shubham Jain passed in Civil Appeal No.765 of 2023 arising out of SLP (C) No.2542 of 2023 and Smt. Sushma Agarwal vs. District Judge, Agra and 2 others passed in Matters Under Article 227 No. 4089 of 2018.
7. Sri Ramesh Chandra Agrahari, learned counsel for the respondents has vehemently opposed the submission of learned counsel for the petitioner and submitted that Order IX Rule 13 read with Section 151 CPC clearly provides that at the time of filing of application, provision of Section 17 of Act, 1887 must have been complied with. In the present case, there is no dispute on the point that while filing the application under Order IX Rule 13 of CPC, he has not complied the Section 17 of Act, 1887, therefore, there is no illegality or perversity in the impugned order.
8. He next submitted that so far as judgment of Apex Court in the case of Shyam Kumar Gupta (supra) is concerned, that is not applicable in the case of petitioner for the reason that in the said case, decretal amount was not clear whereas in the present case ex parte decree and judgment was given on 3.2.2022, decree was prepared on 12.2.2022 and application under Order IX Rule 13 of CPC was filed on 22.2.2022 meaning thereby that petitioner had full knowledge about the decretal amount even though he has not deposited the single penny, while submitting the application under Order IX Rule 13 of CPC.
9. He next submitted that facts of judgment of Apex Court in
While making order for setting aside decree passed ex-parte, Court may put defendant to terms as to costs.
Point of Law : Object behind proviso of Section 17(1) of Provincial Small Causes Courts Act, 1887 is that unscrupulous tenants against whom rent is due, who do not appear on the date fixed may not ta....
Setting aside ex-parte decree – Application under Order 9 Rule 13 of CPC can be allowed only when sufficient cause is made out to set aside ex-parte decree – Extension of time and conduct in deposit ....
A security to be provided under Section 17 of Provincial Small Cause Courts Act, 1887 by a surety is to be enforced under provisions of Section 145 of Code of Civil Procedure as contemplated in Secti....
The timing and maintainability of applications under the Provincial Small Cause Court Act, 1887, were crucial in determining the court's decision.
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