Judicial Analysis Court Copy Headnote Facts Arguments Court observation

ALLAHABAD HIGH COURT
Ajit Kumar, J.
Kamal Kumar Gupta and Anr. – Revisionists
versus
Ajay Kumar Gupta and Anr. – Opp. Parties
S.C.C. Revision No.215 of 2014 with S.C.C. Revision No.245 of 2014 and S.C.C. Revision No.246 of 2014
Decided on : 11.11.2022

Counsel for the Parties:
In S.C.C. Revision No.215/2014
For the Revisionists:T.A. Khan, Advocate
For the Opp. Parties:Manish Goyal and Akanksha Sharma, Advocates
In S.C.C. Revision No.245/2014
For the Revisionists:T.A. Khan, Advocate
For the Opp. Parties:Akanksha Sharma, Advocate
In S.C.C. Revision No.246/2014
For the Revisionists:Manish Goyal and Akanksha Sharma, Advocates

IMPORTANT POINT
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 by delay coupled with aid of discretion being exercised by court, cannot be taken to be a case vitiated for malafides.

Headnote:
(A) Civil Procedure Code, 1908 – Order IX Rule 13 – Provincial Small Cause Courts Act, 1887 – Section 17 – Setting aside ex-parte decree – Maintainability of application – Application for dispensation of deposit of decretal amount with a permission to submit security can be presented at any time (but) up to time of presentation of application for setting aside such an ex-parte decree or review and such an application would be a previous application for dispensation and then court shall have to pass an order – Even in the case where there is a compliance of proviso to Section 17, application filed under Order 9 Rule 13 to set aside decree passed ex-parte or for review of judgment cannot be automatically granted – Compliance of proviso to Section 17 is a pre-condition for maintainability of application under Order 9 Rule 13 – Application under Order 9 Rule 13 can be allowed only when sufficient cause is made out to set aside ex-parte decree – Extension of time and conduct in deposit by delay coupled with aid of discretion being exercised by court, cannot be taken to be a case vitiated for malafides. (Paras 19, 24 and 39)
(B) Provincial Small Cause Courts Act, 1887 – Section 17 – Civil Procedure Code, 1908 – Order IX Rule 13 – Setting aside ex-parte decree – Availability of jurisdiction to exercise discretion is one thing and irregularity in compliance of order passed in exercise of discretion, is another thing – If statute confers discretionary power, though conditioned one, for exercise of such a discretion only given condition is to be complied with – Once court exercises that discretion granting liberty to judgment debtor to submit security or partly by way of security and partly in cash of decretal amount, no fault can be found in exercise of such a discretion – Section 17(1) and its proviso is a substantive provision of law and so discretion if exercised to maintain an application under Order IX Rule 13 CPC, cannot be questioned as such – Nature of security can be an issue but defect therein would be only an irregularity which can be cured – Extension of time and the conduct in deposit by delay coupled with aid of discretion being exercised by court, cannot be taken to be a case vitiated for malafides. (Paras 38 and 39)
Result: Revision Cases Partly allowed.

JUDGMENTS

Ajit Kumar, J.—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 acc