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ALLAHABAD HIGH COURT
Sunita Agarwal, J.
Panchayati Akhara Mahanirvani Vaidik Sanatan Bharti —Petitioner
versus
Ram Prakash Pathak and Ors. —Respondents
Civil Misc. Writ Petition Nos.2023 of 2016, 58290 of 2014, 5539 of 2016
Decided on 22.8.2016
For the Petitioner:Mr. Brijesh Chandra Naik and Mr. P.K. Ganguly, Advocates
For the Respondents:S.C. and Udai Chandani, Advocates
Headnote:(a) Provincial Small Causes Court Act, 1887 – Section 17 r/w Order IX Rule 13, Code of Civil Procedure, 1908 – Application under Order IX Rule 13 for setting aside ex parte decree filed after delay, without any explanation – Application accompanied by application u/s 5, Limitation Act for condoning delay – Before filing application under Order IX Rule 13 C.P.C., neither decreetal money deposited nor application moved under Section 17 to furnish the security in lieu of the decreetal money – Requirement of section 17 mandatory – For maintaining application under Order IX Rule 13, substantial compliance of provisions of Section 17 is mandatory – Instantly, respondent No.1 moving an application u/s 17 with due diligence, before application under Order IX Rule 13 was presented/came up for hearing – Court protecting interest of landlord by allowing the applicant-tenant to furnish security in lieu of the decreetal money – Application u/s 17 allowed and the order was affirmed in Revision – Trial court rejecting application under Order IX Rule 13 C.P.C by a subsequent order – Held, without jurisdiction. (Para 10, 17)
(2002) 2 SCC 16; 2012(9) ADJ 337 (DB); 2013 (1) ADJ 462; 2015 (7) ADJ 796; 2008 (9) ADJ 13; 1985 (1) RCJ 25; 1991 (2) ARC 545 – Referred
(b) Provincial Small Causes Court Act, 1887 – Section 17 – Applicant seeking to set aside ex-parte decree has to deposit decreetal money due from him in the Court within 30 days from the knowledge of the decree – He can move an application u/s 17, proviso, to furnish security for performance of the decree. (Para 23)
(c) Provincial Small Causes Court Act, 1887 – Section 17 – Provisions are mandatory – Delay in compliance of section 17 cannot be condoned – Section 5, Limnitation Act, 1963 has no application – Application under Order IX Rule 13 cannot be entertained unless requirement of section 17 is complied with. (Para 24, 25)
(2002) 2 SCC 16 – Relied upon
2008 (9) ADJ 13; 1991 (2) ARC 545; 1985 (1) RCJ 25 – Distinguished
Result: Aplications allowed.
Sunita Agarwal, J.—The petition under Article 227 of the Constitution of India namely Civil Misc. Petition No.2023 of 2016 (Shri Panchayati Akhara Mahanirvani Vaidik Sanatan Bhartiya Dharmik Sanskriti Sansthan v. Ram Prakash Pathak & Anr.) has been filed challenging the judgment and order dated 1.2.2016 passed by the Additional District Judge, Court No.8, Varanasi in SCC Revision No.17 of 2015 (Ram Prakash Pathak v. Nagendra Upadhyay & Anr.) filed by the respondent No.1 whereby the Court below has set aside the order dated 30.5.2015 passed on the Application Paper No.4 Ga under Order IX Rule 13 C.P.C and remanded the matter back to the trial court to decide the said Application on merits after giving due opportunity of hearing to the parties concerned.
2. In the connected Writ Petition No.58290 of 2014 (Shri Panchayati A.M.V.S.B.D.S. Sansthan v. A.D.J. Varanasi & 3 Ors.), the order dated 17.7.2013 passed by the Judge, Small Causes Court namely the Civil Judge, Varanasi in Misc. Case No.83 of 2012 (Ram Prakash Pathak v. Nagendra Upadhyay) on application under Section 17 of the Provincial Small Causes Court Act, 1887 (hereinafter referred to as ‘the Act, 1887) and the order passed by the Revisional Court dated 15.9.2014 in S.C.C. Revision No.21 of 2013 (Panchayat Akhara v. Ram Prakash Pathak & Anr.) are under challenge.
3. Learned counsel for the petitioner has submitted that the Application Paper No.4 Ga filed for setting aside the ex-parte decree dated 9.12.2011 was not accompanied by an Application under Section 17 of the Act, 1887. The Application under Order IX Rule 13 C.P.C. was filed by the tenant-respondent No.3 on 6.8.2012 with the assertion that he came to know about the ex-parte decree dated 9.12.2011 only on 26.7.2012 when he met respondent No.1 namely Nagendra Upadhyay at Varanasi.
4. It is stated that the application Paper No.13 Ga under Section 17 of the Act, 1887 for furnishing security was moved subsequently on 12.9.2012 i.e. after a gap of one month and six days. The petitioner filed objection Paper No.17 Ga contesting the said application on the ground that it was required to be moved prior to filing of the application under Order IX Rule 13 C.P.C for recall of the ex-parte decree or at least along with the said application. The Court below had no jurisdiction to extend time for depositing the decreetal money or furnishing security in lieu thereof, on a delayed application moved under Section 17 of the Act, 1887 by the tenant-judgment debtor.
5. The Judge Small Causes Court allowed the Application Paper No.13 Ga filed under Section 17 of the Act, 1887 on the wrong premises that only rider to entertain the application under Order IX Rule 13 C.P.C. is that it cannot be heard or decided in case of non-compliance of Section 17(1) of the Act i.e. in case of non-furnishing of security or deposit of decreetal money, however, there is no bar in entertaining an Application under Section 17 of the Act, 1887, if filed, before presentation i.e. hearing on the application under Order IX Rule 13 C.P.C.
6. The Revisional Court in the order dated 15.9.2014 also took the same view and held that since the Application under Order IX Rule 13 C.P.C. has not been presented for hearing till filing of the application under Section 17 of the Act, 1887 and as such there was no legal impediment in entertaining the said application. The order passed by the S.C.C. Court in allowing the tenant-applicant to furnish the security on the application Paper No.13 Ga dated 12.9.2012 was affirmed.
7. On the other hand, the application Paper No.4 Ga under Order IX Rule 13 C.P.C. for setting aside ex-parte decree was rejected vide order dated 30.5.2015 on the ground that the tenant-applicant did not comply with the mandatory requirements of Section 17 of the Act, 1887. The application for furnishing security was moved after more than 30 days of moving application under Order IX Rule 13 C.P.C. for recall of ex-parte decree. The provisions of
