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CASE NO.:

Appeal (civil) 5109 of 1999

PETITIONER:

KEDARNATH

Vs.

RESPONDENT:

MOHAN LAL KESARWARI & ORS.

DATE OF JUDGMENT: 10/01/2002

BENCH:

R.C. Lahoti & Brijesh Kumar

JUDGMENT:

R.C. Lahoti, J.

The landlord-appellant filed a suit for recovery of arrears of rent

and for eviction against the tenant-respondents on the ground

available under Clause (a) of sub-Section (2) of Section 20 of U.P.

Urban Buildings (Regulation of Letting, Rent and Eviction) Act,

1972, hereinafter U.P. Urban Buildings Act, for short. A suit of the

nature filed by the appellant being triable by a court of small causes,

as provided by the U.P. Civil Laws Amendment Act, 1972 was filed

in the Court of Small Causes, Allahabad. On 9.8.1996, the suit came

to be decreed ex-parte. The decree directed the tenant-respondents to

pay an amount of Rs.8500/- as pre-suit arrears of rent and a further

amount calculated at the rate of Rs.250/- per month from the date of

institution of suit to the date of recovery of possession. A decree for

eviction was also passed. The decree was put to execution and on

21.2.1998 the decree-holder obtained possession over the suit

premises with police help. The court amin certified the delivery of

possession to the executing court. On 26.2.1998, the tenant-

respondents moved an application under Order 9 Rule 13 of the

C.P.C. seeking setting aside of the ex-parte decree. Neither the

amount due under the decree was deposited nor an application was

filed seeking direction of the court to give security for the

performance of the decree in lieu of depositing the decretal amount.

On 14.10.1998, arguments were heard on the application under Order

9 Rule 13 of the C.P.C.. The court appointed 16.10.1998 for orders.

It appears that during the course of hearing the appellant

decree-holder pointed out to the court that the application seeking

setting aside of the ex-parte decree was not maintainable and was

liable to be dismissed in limine for non-compliance with proviso to

Section 17 of the Provincial Small Cause Courts Act, 1887

(hereinafter, 'the PSCC Act', for short). On 15.10.1998, the tenant-

respondents filed an application praying that they may be permitted to

furnish security for payment of decretal amount. The reason assigned

for failure to deposit the amount due under the decree or to furnish

security alongwith the application seeking setting aside of the ex-parte

decree is somewhat oscillating. At one place at is stated that their

advocate had never advised them to deposit the decretal amount as the

advocate himself was not aware of the provision. Then, at another

place, it is stated that the rent was already paid to the landlord decree-

holder and there were no arrears required to be deposited. At yet

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another place it is stated that their advocate had advised them that on

the application seeking setting aside of the ex-parte decree being

allowed and the suit being restored to file, on the first date of hearing

the tenant has to deposit the rent in arrears which would be done at

that stage only. Vide order dated 15.11.1998, the learned Judge,

Small Causes, rejected the application filed by the tenant-respondent

forming an opinion that ignorance of law was not excusable and the

application under Order 9 Rule 13 of C.P.C. filed without complying

with proviso to Section 17 of the PSCC Act was not maintainable.

The tenant-respondents preferred a revision in the court of

Additional District Judge, which was allowed. The learned Additional

District Judge vide order dated 22.4.1999, condoned the delay in

moving the application dated 15.10.1998 and directed the trial court to

accept security as proposed and hear and decide the application under

Order 9 Rule 13 of the C.P.C. on merits. The abovesaid revisional

order was put in issue by the landlord-appellant by filing a writ

petition under Article 226 and 227 of the Constitution before the High

Court, which has been rejected. The landlord has filed this appeal by

special leave.

Mr. Gourab K. Banerji, the learned counsel for the appellant

has made two submissions: firstly, that the proviso to Section 17 of

the Act is mandatory in its character and non-compliance therewith

cannot be condoned; and secondly, assuming that the court has power

to condone the delay in making the deposit or furnishing the security

on the principles deducible from Section 5 of the Limitation Act, even

then no sufficient cause was made out for belated offer to make

compliance and in as much as the landlord has already secured

possession of the premises, the tenant-respondents' application was

liable to be rejected.

It is not disputed at the Bar that such a suit as was filed by the

landlord-appellant is, in the State of U.P., to be heard and disposed of

by a court of small causes and hence would be governed by the

provisions of the PSCC Act. Section 17 thereof provides as under:

"7. Application of the Code of Civil

Procedure.- (1) The procedure prescribed in the

Code of Civil Procedure, 1908, shall save in so far

as is otherwise provided by that Code or by this

Act, be the procedure followed in a Court of Small

Causes in all suits cognizable by it and in all

proceedings arising out of such suits:

Provided that an applicant for an order to set

aside a decree passed ex parte or for a review of

judgment shall, at the time of presenting the

application, either deposit in the Court the amount

due from him under the decree or in pursuance of

the judgment, or give such security for the

performance of the decree or compliance with the

judgment as the Court may, on a previous

application made by him in this behalf, have

directed.

(2) Where a person has become liable as surety

under the Proviso to sub-section (1), the security

may be realized in manner provided by Section

145 of the Code of Civil Procedure, 1908."

It is relevant to note that the proviso to sub-Section (1) of Section 17

has undergone a material change through an amendment brought in by

Act No.IX of 1935. Earlier there were the words- "security to the

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satisfaction of the Court for the performance of the decree or

compliance with the judgment, as the court may direct" which have

been deleted and substituted by the present words - "such security for

the performance of the decree or compliance with the judgment as the

Court may, on a previous application made by him in this behalf, have

directed". The Statement of Objects and Reasons for the 1935

amendment was set out as under:

"The Act is designed to remove certain doubts

which have arisen in the interpretation of the

proviso to sub-section (1) of Section 17 of the

Provincial Small Cause Courts Act, 1887. As the

section stands, an applicant is required to give

security to the satisfaction of the Court at the time

of presenting his application. It follows that, in

order to ascertain what security satisfies the Court,

the applicant must already have made an

application in that behalf. There is some doubt

whether the words "as the Court may direct" apply

to the deposit of the whole decretal amount as well

as to the giving of approved security. The Act is

intended to make it clear that the preliminary

application to ascertain what security will satisfy

the Court must be made and decided before the

substantive application for the order to seet aside

the decree, and that it always is open to the

applicant to adopt the alternative course of

depositing the total decretal amount. (Vide

Statement of Objects and Reasons, Gazette of

India, 1935, Pt. V, p.90)."

The object behind establishing Small Cause Courts conferred

with jurisdiction to try summarily such specified category of cases

which need to be and are capable of being disposed of by adopting

summary procedure of trial is to secure an expeditious disposal and to

curtail the lengthy procedure of litigation. Excepting an order for

compensatory costs in respect of false or vexatious claims or

defences or an order imposing fine or directing the arrest or detention

in the civil prison of any person (except where such arrest or detention

is in execution of a decree), orders and decrees of courts of small

causes are not appealable: they are only revisable by the High Court

(or by District Court under Section 115 of CPC as amended in its

application to State of U.P.). The jurisdiction to entertain and hear an

application to set aside a decree passed ex-parte or for a review of

judgment by courts of small causes is sought to be qualified and

narrow down by imposing condition as to deposit or giving security

for performance or compliance by enacting proviso to sub-section (1).

Such a provision fits in the scheme of the PSCC Act. Although there

is no authoritative pronouncement by this Court (none brought to our

notice) interpreting the nature and scope of the proviso however, the

learned counsel for the appellant brought to our notice a number of

decisions delivered by the High Courts of Allahabad, Oudh, Madras,

Orissa, Rajasthan and Lahore which have taken the view that the

proviso is mandatory and non-compliance therewith would entail

dismissal of the application because such non-compliance cannot be

condoned or overlooked by the court. They are, to wit : Mohammad

Ramzan Khan Vs. Khubi Khan AIR 1938 Lahore 18 (DB), Murari

Lal Vs. Mohammad Yasin AIR 1939 Allahabad 46, Mt. Shikhani

Vs. Bishambhar Nath AIR 1941 Oudh 103, Jagdamba Prasad & Ors.

Vs. Ram Das Singh & Anr. AIR 1943 Allahabad 288, Roshan Lal

Vs. Brij Lal Amba Lal Shah- AIR 1944 Oudh 104, Vembu Amal Vs.

Esakkia Pillai AIR 1949 Madras 419, Khetra Dolai Vs. Mohan

Bissoyi AIR 1961 Orissa 37, and Dhanna Vs. Arjun Lal AIR 1963

Rajasthan 240. As the present case arises from the State of Uttar

Pradesh, the learned counsel for the appellant cited a series of

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decisions delivered by Allahabad High Court so as to show the view

of the law being consistently taken there. These are : Krishan Kumar

Vs. Hakim Mohd. 1978 ALJ 738, Sharif Vs. Suresh Chand & Ors.

1979 AWC 256, Roop Basant Vs. Durga Prasad & Anr. 1983 1

ARC 565, Mohd. Islam Vs. Faquir Mohammad 1985 1 ARC 54,

Krishan Chandra Seth Vs. Dr. K.P. Agarwal & Anr. - 1988 1 ARC

310, Mamta Sharma Vs. Hari Shankar Srivastava & Ors.- 1988 1

ARC 341, Mohd. Yasin Vs. Jai Prakash 1988 2 ARC 575,

Purshottam Vs. Special Additional Sessions Judge, Mathura & Ors.

1991 2 ARC 129, Ram Chandra (deceased L.Rs.) & Ors. Vs. IXth

Additional District Judge, Varanasi & Ors.- AIR 1991 Allahabad 223,

Sagir Khan Vs. The District Judge, Farrukhabad & Ors. - 1996 27

ALR 540, Mohammad Nasem Vs. Third Additional District Judge,

Faizabad & Ors. AIR 1998 Allahabad 125, and Beena Khare Vs.

VIIIth Additional District Judge, Allahabad & Anr. 2000 2 ARC

616.

The learned counsel for the respondent brought to our notice

Surendra Nath Mittal Vs. Dayanand Swarup and Anr. AIR 1987

Allahabad 132, Chigurupalli Suryanarayana Vs. The

Amadalavalasa Co-operative Agricultural Industrial Society Ltd.

AIR 1975 A.P. 196 and Tarachand Hirachand Porwal Vs. Durappa

Tavanappa Patravali AIR 1943 Bombay 237. All the three

decisions are single Bench decisions. Suffice it to observe that the

first two decisions are more or less ad hoc decisions which do not

notice other decisions and the general trend of judicial opinion. The

view propounded therein does not appeal to us. The Bombay decision

does not lay down any general proposition of law and proceeds on its

own facts.

A bare reading of the provision shows that the legislature have

chosen to couch the language of the proviso in a mandatory form and

we see no reason to interpret, construe and hold the nature of the

proviso as directory. An application seeking to set aside an ex-parte

decree passed by a Court of Small Causes or for a review of its

judgment must be accompanied by a deposit in the court of the

amount due from the applicant under the decree or in pursuance of the

judgment. The provision as to deposit can be dispensed with by the

court in its discretion subject to a previous application by the

applicant seeking direction of the court for leave to furnish security

and the nature thereof. The proviso does not provide for the extent of

time by which such application for dispensation may be filed. We

think that it may be filed at any time up to the time of presentation of

application for setting aside ex-parte decree or for review and the

Court may treat it as a previous application. The obligation of the

applicant is to move a previous application for dispensation. It is then

for the court to make a prompt order. The delay on the part of the

court in passing an appropriate order would not be held against the

applicant because none can be made to suffer for the fault of the court.

In the case at hand, the application for setting aside ex parte

decree was not accompanied by deposit in the court of the amount due

and payable by the applicant under the decree. The applicant also did

not move any application for dispensing with deposit and seeking

leave of the court for furnishing such security for the performance of

the decree as the court may have directed. The application for setting

aside the decree was therefore incompetent. It could not have been

entertained and allowed.

The trial court was therefore right in rejecting the application.

The District Judge in exercise of its revisional jurisdiction could not

have interfered with the order of the trial court. The illegality in

exercise of jurisdiction by the District Court disposing of the revision

petition was brought to notice of the High Court and it was a fit case

where the High Court ought to have in exercise of its supervisory

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jurisdiction set aside the order of the District Court by holding the

application filed by the respondent as incompetent and hence not

entertainable. We need not examine the other question whether a

sufficient cause for condoning the delay in moving the application for

leave of the court to furnish security for performance was made out or

not and whether such an application moved at a highly belated stage

and hence not being a 'previous application' was at all entertainable

or not.

The appeal is allowed. The impugned orders of the District

Court and the High Court respectively dated 22.4.1999 and 18.5.1999

are set aside and the order of the trial court dated 15.11.1998 is

restored. No order as to the costs.

..........J

( R.C. LAHOTI )

...J

( BRIJESH KUMAR )

January 10, 2002