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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.

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 … Continue reading

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