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Code of Civil Procedure, 1908/Provincial Small Cause Courts Act, 1887- Order 9 Rule 13/Section 17(1)/Proviso-Ex-parte decree by Court of Small Causes for deposit of arrears of rent and eviction-Application by respondent to set aside the decree-Failure by respondent to deposit decretal amount or make a previous application seeking permission to furnish security-Application to furnish security filed subsequently and after delay- Maintainability of the main application-Held, the law is mandatory and not directory for deposit of decretal amount or filing a previous application- Hence, application for setting aside decree not maintainable on account of failure to comply with proviso. Appellant-landlord filed a suit before a Court of Small Causes for recovery of arrears of rent and for eviction against respondent-tenants under Section 20 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The suit was decreed ex-parte for recovery of arrears of rent and eviction. The appellant executed the decree and obtained possession of the premises with police help. The respondents filed an application before the trial court seeking setting aside of the ex-parte decree under Order 9 Rule 13 of CPC. Along with the application, the respondents neither deposited the decretal amount before the trial court nor filed an application seeking permission to furnish security of the decretal amount. During the course of hearing, the appellant contended that the application filed by the respondents was not maintainable and liable to be dismissed for non-compliance with the proviso to section 17 of the Provincial Small Cause Courts Act, 1887 (PSCC Act). The respondents then filed an application before the trial court seeking permission to furnish security for the decretal amount the trial court dismissed both the applications. The Court of Additional District Judge, in a revision preferred by the respondents, condoned the delay and directed the trial court to accept security and decide the application filed under Order 9 Rule 13 CPC on merits. A Writ Petition filed before High Court by the appellant was dismissed. In appeal to this Court, the appellant contended that the proviso to section 17 of the PSCC Act is mandatory and hence the non-compliance therewith cannot be condoned; and that, even assuming the court has power to condone the delay, no sufficient cause was made by the respondents. =Allowing the appeal, the Court HELD : 1.1. The object behind establishing the Courts of Small Causes 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. 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 narrowed down by imposing condition as to deposit or giving security for performance or compliance by enacting proviso to section 17(1) of the Provincial Small Cause Courts Act, 1887 (PSCC Act). [149-G; 150-A] 1.2. A bare reading of the provision shows that the legislature has chosen to couch the language of the proviso in a mandatory form and there is 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 proviso 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. 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. [151-B-D] 1.3. The application for setting aside ex-parte decree was not accompanied by the 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. [151-F] Mohammad Ramzan Khan v. Khubi Khan, AIR (1938) Lahore 18 (DB); Murari Lal v. Mohammad Yasin, AIR (1939) Allahabad 46; Mt. Shikhani v. Bishambhar Nath, AIR (1941) Oudh 103; Jagdamba Prasad and Ors., v. Ram Das Singh and Anr., AIR (1943) Allahabad 288; Roshan Lal v. Brij Lal Amba Lal Shah, AIR (1944) Oudh 104; Vembu Amal v. Esakkia Pillai, AIR (1949) Madras 419; Khetra Dolai v. Mohan Bissovi, AIR (1961) Orissa 37; Dhanna v. Arjun Lal, AIR (1963) Rajasthan 240; Krishan Kumar v. Hakim Mohd. (1978) ALJ 738; Sharif v. Suresh Chand and Ors., (1979) AWC 256; Roop Basant v. Durga Prasad and Anr., (1983) 1 ARC 565; Mohd. Islam v. Faquir Mohammed, (1985) 1 ARC 54; Krishan Chandra Seth v. Dr. K.P. Agarwal and Anr.,(1988) 1 ARC 310; Mamta Sharma v. Hari Shankar Srivastava and Ors., (1988) 1 ARC 31; Mohd Yasin v. Jai Prakash, (1988) 2 ARC 575; Purshottam v. Special Additional Sessions Judge, Mathura and Ors. (1991) 2 ARC 129; Ram Chandra (deceased L.Rs.) and Ors. v. IXth Additional Distric Judge, Varanasi and Ors., AIR (1991) Allahabad 223; Sagir Khan v. The District Judge, Farrukhabad and Ors., (1996) 27 ALR 540; Mohammad Nasem v. Third Additional District Judge, Faizabad and Ors., AIR (1998) Allahabad 125; Beena Khare v. Vllth Additional District Judge, Allahabad and Anr, (2000) 2 ARC 616; Surendra Nath Mittal v. Dayanand Swarup and Anr., AIR (1987) Allahabad 132; Chigurupalli Suryanarayana v. The Amadalayalasa Co-operative Agricultural Industrial Society Ltd., AIR (1975) A.P. 196 and Tarachand Hirachand Porwal v. Durapa Tavanappa Patravali, AIR (1943) Bombay 237, referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5109 of 1999.

Alexey Korzukhin (1835-1894) Collecting Arrears

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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
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
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
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
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

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