1) The S.S.C case No.4 of 1994 was filed
by the landlord on 18.03.1994 claiming possession,
rent and mesne profit. The landlord’s case was that
the notice was given on 24.12.1993 demanding the
amount of rent, due rent, profit etc. Thereafter
the S.C.C. Case No.4 of 1994 was filed in the Court
of Additional Civil Judge, Senior Division,
Roorkee. On 14.07.1994, the tenant was served
summons. He prayed time to file a written Statement
till 24.08.1994. The tenant filed an application
under Section 10 CPC to stay the suit as well as
the application under Order VII Rule 11 CPC. Both
applications were rejected and the Court allowed
fifteen days time to file a written statement and
fixed 16.10.1995 for hearing. On 16.10.1995, the
tenant again took time but did not file a written
statement. Several other opportunities were given
to the tenant to file a written statement in which
he failed. On 24.02.1997, Court passed an order to
proceed exparte.
2) Application under Order 9 Rule 13 can be allowed only
when sufficient cause is made out to set aside the exparte
decree. The present is a case where no sufficient cause
was made out to set aside the exparte decree.
48. As noted above, the tenant had unsuccessfully
challenged the orders passed by the trial court on
24.02.1997 and 18.03.1997 to proceed exparte.
The application of the tenant to recall the orders
dated 24.02.1997 and 18.03.1997 was rejected by the
trial court with a clear finding that the tenant
wants to delay the case regularly because he is the
tenant and getting benefit of the property. The
application of the tenant was held to be mala fide.
49. The High Court without even adverting to the
earlier order of the trial court dated 16.05.1997,
where categorical findings had been recorded
against the tenant, choose to allow the application
under Order 9 Rule 13 filed by the tenant to recall
exparte decree, which cannot be said to be correct
exercise of jurisdiction under Article 226 of the
Constitution.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.802-803 of 2021
SUBODH KUMAR Vs SHAMIM AHMED
Author: ASHOK BHUSHAN, J.
Dated: March 03, 2021.
Leave granted
2.This appeal has been filed against the judgment of
the High Court of Uttarakhand dated 13.12.2018
allowing the Writ Petition (M.S.) No.418 of 2008
filed by respondent No.1 as well as the order dated
24.05.2019 rejecting the Review Petition filed by
the appellant to review the judgment dated
13.12.2018.
3.The facts of the case giving rise to this appeal,
which are relevant for deciding the issues raised,
need to be carefully noticed. The High Court in the
impugned judgment although has noted few facts but
certain relevant facts have been missed by the High
Court which have bearing on the issues which had
arisen before the High Court.
4.The facts of any case are the foundation on which
the dispute between the parties arises. The
arguments are built by the counsel for the parties
in reference to the foundational facts for applying
the legal principles to decide the dispute. A clear
grasp of foundational facts are essential. The law
is applied on facts and when essential facts are
missed, misapplication
of law is bound to happen.
We may recall prophetic words of Mr. Justice
Cardozo when he said: "...
More and more we lawyers are
awakening to a perception of the truth
what divides and distracts us in the
solution of a legal problem is not so
much uncertainty about the law as
uncertainty about the facts the
facts
which generate the law. Let the facts be
known as they are, and the law will
sprout from the seed and turn its
branches toward the light.”
5.The appellant herein shall be referred as
‘landlord’ whereas the respondent No.1 Shamim Ahmed
as ‘tenant’. Dispute relates to a shop being shop
No.39(29) situated in Compound No.3, Civil Lines,
Roorkee, District Haridwar. The respondent was
inducted as tenant at Rs.150/per
month by
predecessorintitle
of the landlord. The landlord
purchased the shop in question by sale deed on
30.01.1991. The S.S.C case No.4 of 1994 was filed
by the landlord on 18.03.1994 claiming possession,
rent and mesne profit. The landlord’s case was that
the notice was given on 24.12.1993 demanding the
amount of rent, due rent, profit etc. Thereafter
the S.C.C. Case No.4 of 1994 was filed in the Court
of Additional Civil Judge, Senior Division,
Roorkee. On 14.07.1994, the tenant was served
summons. He prayed time to file a written Statement
till 24.08.1994. The tenant filed an application
under Section 10 CPC to stay the suit as well as
the application under Order VII Rule 11 CPC. Both
applications were rejected and the Court allowed
fifteen days time to file a written statement and
fixed 16.10.1995 for hearing. On 16.10.1995, the
tenant again took time but did not file a written
statement. Several other opportunities were given
to the tenant to file a written statement in which
he failed. On 24.02.1997, Court passed an order to
proceed exparte.
On 18.03.1997, the plaintifflandlord
was permitted to give exparte
evidence.
The application 44Ga was filed by the tenant to
recall the orders dated 24.02.1997 and 18.03.1997.
On 16.05.1997, the application 44Ga was rejected
observing that the defendant wants to delay the
case regularly because he is a tenant and getting
the benefit of property. The application was found
5
to be mala fide.
6.On 23.05.1997, the tenant filed an application
under Section 30(2) of the U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction) Act,
1972, to deposit the rent. The application was
allowed on 23.05.1997 by the Court observing that
the plaintiff may deposit the amount on his own
risk. On 07.07.1997, the amount of rent from
01.03.1988 to 30.06.1997 amounting to Rs.16,800/was
deposited by the tenant under Section 30(2).
7. Against the Order dated 16.05.1997, a revision was
filed by the tenant before the District Judge,
which too was rejected on 22.08.1997. On
18.10.1997, the tenant further deposited Rs.750/as
rent from 30.06.1997 to 30.11.1997.
8.The S.C.C. case No.4 of 1994 filed by the landlord
was allowed by exparte
judgement dated
6
31.03.1998. On 27.07.1998, the tenant had filed an
application for execution of exparte
decree dated
31.03.1998 claiming a total amount of Rs.21,660/.
The tenant thereafter on 25.08.1998 filed an
application under Order 9 Rule 13 CPC along with
application under Section 5 of Limitation Act for
condoning the delay to recall the exparte
decree
dated 31.03.1998. Along with application dated
25.08.1998 filed under Order 9 Rule 13 CPC, no
deposit was made by the tenant as required by
Section 17 of the Provincial Small Cause Courts
Act, 1887 (hereinafter referred to as “Act,1887”).
9.On 25.11.1998, i.e., after filing the application
under Order 9 Rule 13, the tenant made further
deposit of Rs.1950/as
a rent from 30.11.1997 to
31.12.1998. On 27.07.2002, the application was
filed by the tenant praying that amount deposited
under Section 30(2) of U.P. Act No.13 of 1972 be
presumed to be deposited under Section 17 of the
7
Act, 1887, and the tenant be granted benefit of
Section 17.
10. The appellant landlord filed a detailed
objection dated 07.08.2002 opposing the application
dated 27.07.2002. The trial court vide order dated
19.04.2007 rejected the application filed by the
tenant under Order 9 Rule 13 and Section 5 of the
Limitation Act. A revision was filed by the tenant
against the order dated 19.04.2007 before the
District Judge, who rejected the same by order
dated 23.02.2008. Aggrieved by the order dated
19.04.2007 of the trial court as well as order
dated 23.02.2008 of the District Judge rejecting
the revision, a Writ Petition No.418 of 2008 was
filed by the tenant in the High Court.
11. The Writ Petition was allowed by the High
Court by the impugned judgment dated 13.12.2018.
The High Court set aside the order dated 19.04.2007
8
of the trial court and 23.02.2008 of the Revisional
Court and remanded the matter back to the trial
court for reconsideration of tenant's application
under Order 9 Rule 13 CPC and Section 5 of the
Limitation Act in accordance with law. The
appellantlandlord
aggrieved by the judgment of the
High Court dated 13.12.2018 filed a special leave
petition in this Court, being SLP(Civil) Diary
No.15791 of 2019 which was dismissed and withdrawn
by the landlord with liberty to file Review
Petition before the High Court. Liberty to come
back was also granted by this Court vide Order
dated 10.05.2019. After the Order of this Court
dated 10.05.2019, a review application was filed by
the appellantlandlord
before the High Court, which
too has been rejected on 24.05.2019. The appellantlandlord
aggrieved by the aforesaid judgments dated
13.12.2018 and 24.05.2019 of the High Court has
come up in this appeal.
9
12. After the judgment of the High Court dated
13.12.2018, the trial court in pursuance of the
remand order has allowed the application under
Order 9 Rule 13 CPC and Section 5 of the Limitation
Act by order dated 24.05.2019.
13. We have heard Shri R.B.Singhal, learned senior
counsel appearing for the appellant and Dr. Sumant
Bharadwaj, learned counsel appearing for the
respondent.
14. Shri R.B. Singhal, learned senior counsel for
the appellant submitted that application of tenant
under Order 9 Rule 13 was rightly rejected for noncompliance
of mandatory provisions of Section 17
Proviso of the Act, 1887. It is submitted that as
per proviso to Section 17, the tenant was obliged
to deposit the decretal amount due on the date of
filing the application which has not been complied
with. The application has been rightly rejected by
10
the trial court. He has further submitted that the
application to give the benefit of the amount
deposited under Section 30(2) of UP Act No.13 of
1972 was filed by the tenant on 27.07.2002 that is
after four years which could not have enured to the
benefit of the tenant. The deposit made under
Section 30(2) of the U.P. Act No.13 of 1972 was in
the name of the appellant as well as the respondent
No.5, hence, the deposit also was not relevant for
giving benefit to the tenant under Section 17
proviso. The deposit under Section 30(2) being in
joint name which could not be withdrawn by
landlordappellant
alone, such deposit cannot help
the respondent tenant for compliance of Section 17
proviso. Even the deposits made under Section 30(2)
was not the deposit of the total amount due on the
date of filing the application under Order 9 Rule
13.
15. It is submitted that 25.08.1998 is the date of
11
presenting application under Order 9 Rule 13 and
the tenant had deposited only the amount of
Rs.17,550/which
was not the entire decretal
amount payable by tenant. The executionapplication
has already been filed by the landlord appellant on
27.07.1998 in which the total decretal amount
claimed was Rs.21,660/.
Thus, even assuming
without admitting that amount under Section 30(2)
can be adjusted, the amount being not total
decretal amount, benefit under Section 17 proviso
could not be extended to the tenant and the
application was rightly rejected. It is further
submitted that there was no ground for allowing the
application under Order 9 Rule 13 since the order
to proceed exparte
against the tenant was
unsuccessfully challenged by the tenant before the
Revisional Court. There was no genuine ground for
allowing the application under Order 9 Rule 13. The
High Court committed error in interfering with the
order of the trial court as well as the Revisional
12
Court.
16. Dr. Sumant Bharadwaj, appearing for the
respondent submits that the amount deposited under
Section 30(2) of U.P.Act No.13 of 1972 was entitled
to be given credit for the purposes of proviso to
Section 17 of Act, 1887 and the High Court has
rightly taken the view that the amount up to
31.12.1998 having already been deposited under
Section 30(2), the application under Order 9 Rule
13 could not have been rejected for noncompliance
of proviso to Section 17.
17. It is submitted that the High Court has
rightly taken the view that the Court below had
adopted hypertechnical and pedantic approach while
considering the application under Order 9 Rule 13
and Section 5 of the Limitation Act. It is
submitted that the tenant had deposited the entire
decretal amount under Section 30(2) which was due
13
at the time of filing application under Order 9
Rule 13. The application filed by the tenant was
wrongly rejected by the trial court as well as the
Revisional Court. The High Court has done
substantial justice in allowing the application
under Order 9 Rule 13.
18. We have considered the submissions of the
learned counsel for the parties and have perused
the record.
19. From the submissions of the learned counsel
for the parties and materials on record, following
issues arise for consideration in this appeal:1)
Whether in the application filed by the
respondenttenant
under Order 9 Rule 13,
CPC on 25.08.1998, the requirements as
contained in Proviso to Section 17 of the
Provincial Small Cause Courts Act, 1887,
were complied with?
14
2)Whether the respondenttenant
had
deposited the entire amount due on
25.08.1998 under Section 30(2) of U.P. Act
No.13 of 1972?
3) Whether the deposit of rent under Section
30(2) of the U.P. Act No.13 of 1972 in the
present case can be treated to be
deposited under proviso to Section 17 of
Act, 1887?
4)Whether the respondenttenant
has made
sufficient ground to allow the application
filed under Order 9 Rule 13 CPC dated
25.08.1998?
5)Whether the High Court is right in its
view that the trial court and the
Revisional Court has taken a hyper15
technical and pedantic approach while
considering the application under Order 9
Rule 13 CPC and Section 5 of the
Limitation Act filed by the respondent?
The first, second and third questions being
interrelated are taken together.
20. The S.C.C. suit No.4 of 1994 was filed by the
appellant landlord in March, 1994. The plaintiff’s
case was that he had purchased the property by the
sale deed dated 30.01.1991 after due permission
from the District Judge, Haridwar. The plaintiff
claimed to be owner of the property w.e.f.
30.01.1991. Defendant Nos.2 to 5 had also joined
the plaintiff in the notice given to the respondent
terminating the tenancy. There was categorical
pleading in the plaint that the U.P. Act No.13 of
1972 is not applicable since the subject property
was recent construction. It is useful to refer to
16
the pleadings in paragraph 5 of the plaint which is
to the following effect:"
5. That U.P. Act 13 of 1972 is not
applicable to the disputed property.
It is the recent construction and is
subject to assessment by Municipal
Board, Roorkee and the first such
assessment thereon came into effect
from 01.04.1984.”
21. We may notice Section 17 and its proviso,
compliance of which was required by the tenantrespondent
while filing application under Order 9
Rule 13 CPC. Section 17 is as follows:"
17.Application of the Code of Civil
procedure.(
1) The procedure
prescribed in the Code of Civil
Procedure,1908(5 of 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 his
application, either deposit in the
Court the amount due from him under
17
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 subsection
(1), the security may be
realized in manner provided by Section
145 of the Code of Civil Procedure,
1908 (5 of 1908).”
22. Proviso to Section 17 has been engrafted with
the object that unscrupulous tenants who do not
appear in the Court in the suit proceedings should
not be allowed to file the application to recall
exparte
decree unless they deposit the entire
amount or give security to the Court for compliance
of the decree. The proviso is to take care of those
tenants who deliberately do not appear in the suit
neccesiating the Court to pass exparte
decree. The
object is to protect the landlord and to ensure
that the decree passed is satisfied by the tenant,
in event, the application under Order 9 Rule 13 is
18
ultimately rejected. Proviso gives two options to
an applicant against whom an exparte
decree has
been passed or who applied for review of the
judgment, i.e., (a) deposit in the Court the
amount due from him under the decree or in
pursuance of the decree; (b) give such security for
the performance of the decree or compliance with
the judgment as the Court made on the previous
application made by him in this behalf directed.
Thus, requirement of the deposit in the court the
entire amount can be waived only when the Court on
the previous application directs the tenant to give
such security for performance of the decree or
compliance with the judgment. The application
seeking waiver from deposit has been mentioned as
“a previous application” i.e. previous to the
application filed under Order 9 Rule 13.
23. The present is a case where the tenant has
filed an application under Order 9 Rule 13 on
19
25.08.1998 to recall the exparte
decree dated
31.03.1998. There is no reference of any previous
application praying the Court to permit the tenant
to give security to satisfy the exparte
decree.
The application dated 25.08.1998 was not
accompanied by the deposit of the amount due from
the tenant under the decree dated 31.03.1998. The
application dated 25.08.1998, thus, was not in
accordance with proviso to Section 17. When the
condition precedent for presenting the application
under Order 9 Rule 13 was not fulfilled, the
application under Order 9 Rule 13 filed by the
tenant respondent did not deserve any consideration
and had rightly been rejected.
24. This Court had occasion to consider Section
17(1) proviso of the Act, 1887, and application
filed under Order 9 Rule 13 in Kedarnath versus
Mohan Lal Kesarwari and others, (2002) 2 SCC 16.
In the above case, a suit was filed by the landlord
20
for recovery of arrears of rent and eviction under
Section 20(2) of Act No.13 of 1972 which was
triable by the Court of Small Causes. The suit was
decreed exparte.
When the decree was put in
execution, the tenant moved application under Order
9 Rule 13 seeking setting aside exparte
decree.
Neither the amount due on the decree was deposited
nor an application was filed seeking direction from
the Court to give security. The facts have been
noted in paragraph 1 of the judgment, which is to
the following effect:"
1.The appellantlandlord
filed a
suit for recovery of arrears of rent
and for eviction against the
respondenttenants
on the ground
available under clause (a) of subsection
(2) of Section 20 of the
U.P.Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972,
hereinafter “the 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
09.08.1996, the suit came to be
decreed ex parte. The decree directed
21
the respondenttenants
to pay an
amount of Rs.8500 as presuit
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 21.02.1998 the
decreeholder
obtained possession over
the suit premises with police help.
The Court Amin certified the delivery
of possession to the executing court.
On 26.02.1998, the respondenttenants
moved an application under Order 9
Rule 13 CPC seeking setting aside of
the ex parte decree. Neither was the
amount due under the decree deposited
nor was an application 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 CPC.
The Court appointed 16.10.1998 for
orders.”
25. The trial court had rejected the application
forming an opinion that application under Order 9
Rule 13 has been filed without complying with the
proviso to Section 17 which application was not
maintainable. In a revision filed before the
22
District Judge, the delay was condoned and the
District Judge directed the trial court to accept
security as proposed and decide the application
under Order 9 Rule 13 on merits. The writ petition
before the High Court by the landlord was
dismissed, thereafter the matter had come to this
Court.
26. This Court, after noticing Section 17, has
extracted the statement of objects and reasons for
1935 amendment in Section 17. Following was
observed in paragraph 5 of the judgment: "
5...It is relevant to note that the
proviso to subsection
(1) of Section
17 has undergone a material change
through an amendment brought in by Act
9 of 1935. Earlier these 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”
whic 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
23
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
subsection
(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 ascertin what
security will satisfy the court must
be made and decided before the
substantive application for the
order to set 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, Part V, p.90).”
27. This Court has held that compliance of the
proviso to Section 17 is mandatory for making
24
application under Order 9 Rule 13. In paragraph 8
and 9, following was laid down: "
8. A bare reading of the provision
shows that the legislature has 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
25
be made to suffer for the fault of the
court.
9. 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
payabl 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.”
28. This Court held that the trial court had
rightly rejected the application which was not in
compliance with Section 17 and both the District
Judge and the High Court committed error in
interfering with the order of the trial court. In
paragraph 10, following was held: "
10. 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
26
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
respondents 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.”
29. On the date when the application was filed
under Order 9 Rule 13, i.e., 25.08.1998, neither
any deposit was made by the tenant nor there was
any previous application seeking permission of the
Court to give security. Hence, there being noncompliance
of proviso to Section 17, application
was liable to be rejected and the trial court vide
its order dated 19.04.2007 had rightly rejected the
application under Order 9 Rule 13.
27
30. We may also notice one more submission of the
learned counsel for the appellant, that the deposit
under Section 30(2) of the Act No.13 of 1972 which
was due on the date of filing of the application
under Order 9 Rule 13 CPC was not the deposit of
the entire amount. In the execution application
filed on 27.07.1998 by the landlord to execute the
decree dated 31.03.1998, the amount which was
claimed was Rs.21,660/which
was due till then.
31. The application under Order 9 Rule 13 CPC was
filed on 25.08.1998, i.e., subsequent to filing of
the execution application, thus, at least the
amount of Rs.21,660/was
due. The tenant
respondent has made a deposit under Section 30(2)
in July, 1997 of Rs.16,800/and
again Rs.750/on
18.10.1997 which was rent from 30.06.1997 to
30.11.1997. Thus, on the date when the application
was filed under Order 9 Rule 13, total deposit made
by the tenant under Section 30(2) was only
28
Rs.17,550/whereas
the amount due as per execution
application was Rs.21,660/.
It was only on
25.11.1998, i.e., much after filing of the
application under Order 9 Rule 13, the tenant
deposited amount of Rs.1,950/as
a rent from
30.11.1997 to 31.12.1998. Thus, even according to
the own case of the respondent tenant on the date
when application under Order 9 Rule 13 was filed,
i.e., 25.08.1998, the tenant had not deposited
under Section 30(2) the total amount due, thus, by
no stretch of imagination the tenant could have
claimed compliance of proviso to Section 17 of Act,
1887.
32. Now, we may proceed to consider as to whether
deposit under Section 30(2) in the facts of the
present case could have enured to the benefit of
tenant for the purposes of deposit under Section 17
of Act, 1887. The deposit was made on an applicaion
under Section 30(2) filed by the respondent tenant.
29
The Court while allowing the application on
23.05.1997 had passed the following order:"
ORDER
4Kh application u/s 30(2) of Act
No.XIII of 1972 is allowed without
prejudice to the respective contentions
of the parties. The plaintiff may
deposit the amount if he so likes at
his own risk. The parties shall be free
to agitate the question of validity of
deposit in the S.C.C. Suit pending.
File be consigned.”
33. Thus, the deposit by respondenttenant
under
Section 30(2) was under his own risk and the
parties were free to agitate the question of
validity of deposit in the S.C.C. suit which was
pending on that day.
34. We have noted the pleadings in the suit that
the plaintifflandlord
has come up with the case
that Act No. 13 of 1972 is not applicable. In the
pleadings of the suit, the plaintiffappellant
has
claimed the exemption from the operation of the Act
30
13 of 1972, ten years of construction being not
completed. Section 2 of Act No. 13 of 1972
provides:"
2. Exemptions from operation of Act.
(1)..... ..... .....
(2) Except as provided in subsection
(5) of Section 12, subsection
(1A)
of Section 21, subsection
(2) of
Section 24, Sections 24A,
24B,
24C
or subsection
(3) of Section 29,
nothing in this Act shall apply to a
building during a period of ten years
from the date on which its
construction is completed]:
Provided that where any building
is constructed substantially out of
funds obtained by way of loan or
advance from the State Government or
the Life Insurance Corporation of
India or a bank or a cooperative
society or the Uttar Pradesh Avas Evam
Vikas Parishad, and the period of
repayment of such loan or advance
exceeds the aforesaid period of ten
years then the reference in this subsection
to the period of ten years
shall be deemed to be a reference to
the period of fifteen years or the
period ending with the date of actual
repayment of such loan or advance
(including interest), whichever is
shorter.:
Provided further that where
31
construction of a building is
completed on or after April 26, 1985
then the reference in this subsection
to the period of ten years shall be
deemed to be a reference to a period
of forty years from the date on which
its construction is completed."
35. When the plaintiff had claimed exemption from
the operation of the Act No. 13 of 1972, it was
specific pleading as noted above, how deposit can
be made under Section 30 of the Act by the tenant
respondent. Section 2 begin with the expression
that 'Nothing in this Act shall apply'. When there
is exemption from the applicability of the Act
No.13 of 1972 as pleaded by the plaintiff, Section
30 of the Act shall also not be applicable. When
Section 30 itself is not applicable to the
building, the deposit claimed to be made under
Section 30(2) is wholly irrelevant, for any
purposes including for purposes of proviso to
Section 17 of Act, 1887.
32
36. The High Court in the impugned judgment has
relied on two earlier judgments of the High Court
for coming to the conclusion that the deposit of
Section 30(2) of Act No. 13 of 1972 can be adjusted
against the amount required to be deposited as per
Section 17 proviso of Act, 1887. The High Court has
referred to the judgment of the High Court in Prem
Chandra Mishra versus IInd Additional District
Judge, Etah, Writ Petition No.12103 of 1996 decided
on 11.09.2008 reported in (2008) 9 ADJ 13.
37. In the case of Prem Chandra Mishra, certian
amount was deposited by the tenant on first date of
hearing, some amount was also deposited under Order
15 Rule 5 CPC by the tenant. The amount which was
deposited under Section 20(4) of the Act No.13 of
1972 as well as Order 15 Rule 5 CPC which could
have been deemed to have been paid on the date of
such deposit. Following are the observations of the
High Court: 33
"...Question arising in the present
case is that Revisional Court has
recorded finding of fact which has not
at all been assailed before this Court
that entire amount which is due from
tenant under decree qua the same
deposit is already there even before
passing of decree and once entire
amount in question is there can even
in this contingency application under
Section 17(1) of Provincial Small
Cause Courts Act 1887 can be dismissed
for noncompliance
of provision of
proviso. Amount in question under
Section 20(4) of U.P. Act No. 13 of
1972 is permitted to be deposited in
any suit for eviction on the ground
mentioned in Clause (a) of subSection
(2) of Section 20 by the tenant on the
first hearing of the suit
unconditionally and amount which is
already deposited under SubSection
(1) of Section 30 of U.P. Act No. XIII
of 1972 is liable to be deducted for
enabling tenant to save eviction. SubSection
(6) of Section 20 clearly
provide that any amount deposited by
the tenant under SubSection
(4) or
under Rule 5 of Order VX of the First
Schedule to the Code of Civil
Procedure, 1908 shall be paid to the
landlord forthwith on his application
without prejudice to the parties
pleadings and subject to the ultimate
decision in the suits. Similarly SubSection
(4) of Section 30 provides
that on any deposit which are made
under Section 30 the amount in
question which has been deposited can
34
be withdrawn on an application made in
this behalf and further subSection
(6) of Section 30 provides that any
deposit made, same shall be deemed
that the person depositing it has paid
it on the date of such deposit to the
person in whose favour it is deposited
in the case referred to in subsection
(1) or to the landlord in the case
referred to in subsection
(2). Thus,
deposits which are made under SubSection
(4) of Section 20 and under
Section 30 of U.P. Act No. 13 of 1972
and under Order XV Rule 5 C.P.C. are
in custody of the Court and said
amount in question can at any point of
time, be withdrawn by the landlord in
question, and are readily available to
the landlord...”
38. The High Court in the above case came to the
following conclusion: "...
Facts of the present case are
on better footing, inasmuch as here
Revisional Court has recorded
categorical finding that as per
exparte decree. Tenant was required to
deposit Rs. 5338.75/in
cash which
was inclusive of rent claimed by
plaintiff and other expenses and total
which has been deposited by him was
over and above the amount which was to
be paid by him under decree i.e. more
than Rs. 5800/.
In the present case admitted
position is that after ex parte decree
has been passed application to recall
exparte
decree was made on 24.05.1993
and alongwith the same application
under the proviso to Section 17(1) has
not at all been moved. Said
application was admittedly moved
subsequent to the same on 25.02.1994
and in the said application mention
was made by him that he has already
deposited the rent, cost of suit and
interest of JSCC suit much earlier
before passing of exparte decree. Said
application which has been moved on
behalf of tenant was not stating any
thing new rather it was sought to be
stated by the tenant that in the
present case decretal amount is
already with the court as he has
already paid arrears of rent, cost of
suit and interest of JSCC suit much
before passing of exparte decree and
same may be taken into consideration
while entertaining application.
Distinction will have to be drawn qua
the cases wherein entire amount as
mentioned in the proviso to Section 17
of Provincial Small Cause Courts Act
1887 already stands deposited even
before passing of exparte decree. In
the said event of entire amount in
question being prior deposited,
information has to be furnished before
Judge Small Causes Court, then said
fact on verification can be treated as
sufficient compliance as provided
under the proviso to Section 17 (1) of
36
Provincial Small Cause Courts Act
1887, inasmuch as nothing new has been
sought to be done after expiry of the
period rather only information has
been furnished that said condition has
already been complied with and
interest of landlord is fully
protected as per object and the
purpose of Section 17. Tenant cannot
be asked to make deposit for second
time and furnish security for the
second time in the backdrop that prior
to passing of decree entire amount due
under decree or judgment has already
been deposited. Judge Small Causes can
make inquiry in the matter of this
fact on being apprised as to whether
decretal amount is there or not but
where decree in question has been
passed and decretal amount mentioned
as above is not at all there then law
laid down by Hon'ble Apex Court in
Kedarnath's case (supra) has to be
followed in its word and spirit.
Facts narrated above clearly
makes Kedarnath's case (supra)
distinguishable. In the facts of the
present case as finding of fact is
that entire amount has been deposited
which was over and above to the
decretal amount and Revisional Court
has allowed the same then there being
no failure of justice, then there is
hardly any scope of interference.
Consequently, in terms of observations
made above, present writ petition is
dismissed.”
37
39. The perusal of the judgment indicate that the
said was a case where applicability of Act No. 13
of 1972 was not questioned and the deposit made
under Section 20(4) as well as Order 15 Rule 5 CPC
were relied for the purposes of Section 17.
40. In the present case, the plaintiff has come up
with the case that Act No.13 of 1972 is not
applicable in the building in question. When Act
No.13 of 1972 is not applicable, there is no
question of deposit under Section 30 nor deposit
under Section 30 can be said to be valid deposit.
Thus, judgment of the Allahabad High Court, which
has been relied in the impugned judgment, is
clearly distinguishable.
41. We have our own doubts about the correctness
of the view taken by Allahabad High Court in the
above judgment, but for the purposes of the present
case, we need not dwelve any further since in the
38
present case, Act No.13 of 1972 is not applicable.
The deposit under Section 30 is of no avail and
further, as held above, there was no deposit of the
entire amount due on the date of filing the
application under Order 9 Rule 13 by the tenant.
42. In view of the foregoing discussions, our
answer to question Nos.1,2 and 3 are as follow:1)
In the application filed by the tenant on
25.08.1998 under Order 9 Rule 13, there was no
compliance of Section 17 of 1887 Act and the
application was incompetent.
2) The respondenttenant
had not deposited the
entire amount due on 25.08.1998 even under
Section 30(2) of Act No.13 of 1972.
3) The deposit of rent under Section 30(2) of
the Act No.13 of 1972 in the present case can
39
not be treated to be deposit for the purposes of
proviso under Section 17 of the Act, 1887.
Now we come to the question No.4
43. Even if for the arguments sake, we proceed on
the assumption that in the present case, there is a
compliance of proviso to Section 17, whether
application under Order 9 Rule 13 in the facts of
the present case was rightly rejected by the trial
court is a question to be considered.
44. We have noticed above that prior to exparte
decree dated 31.03.1998, trial court had already
passed two orders to proceed exparte
on 24.02.1997
and 18.03.1997. The tenant respondent had filed an
application 44Ga to recall the orders dated
24.02.1997 and 18.03.1997 which applications were
rejected on 16.05.1997. While rejecting the
application 44Ga filed by the tenant to recall the
40
exparte
order. Following was said by the trial
court while rejecting the application: "...
The defendant wants to delay the
case regularly because he is a tenant
and getting benefit from the property.
The application is based on malafide.
The defendant is failed to explain any
legal and genuine cause for his
absence. It is not reasonable to grant
any other opportunity. The application
is rejected. The plaintiff present his
exparte evidence on 25.05.1997.”
45. The tenant's application to recall the
exparte order was rejected by recording the
findings as noted above. The trial court while
rejecting the application under Order 9 Rule 13 has
considered the entire sequence of events and facts.
The trial court while rejecting the application
under Order 9 Rule 13 vide its order dated
19.04.2007 has recorded categorical finding that
there is no compliance of proviso to Section 17,
the decretal amount having not been deposited at
the time of filing application under Order 9 Rule
13.
41
46. We may also notice the order of the District
Judge by which he rejected the revision petition
filed by the tenant against the order dated
19.04.2007. District Judge in judgment noted that
the tenant was provided with several opportunities
to file written statement.
47. We are, thus, of the considered opinion that
there was no valid ground on which the High Court
could have interfered with the order of the trial
court rejecting the application under Order 9 Rule
13 filed by the tenant to recall the exparte
decree. We may further hold that even in the case
where there is a compliance of proviso to Section
17, the application filed under Order 9 Rule 13 to
set aside the decree passed exparte
or for review
of the judgment cannot be automatically granted.
The compliance of proviso to Section 17 is a Precondition
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 the exparte
decree. The present
is a case where no sufficient cause was made out to
set aside the exparte
decree.
48. As noted above, the tenant had unsuccessfully
challenged the orders passed by the trial court on
24.02.1997 and 18.03.1997 to proceed exparte.
The
application of the tenant to recall the orders
dated 24.02.1997 and 18.03.1997 was rejected by the
trial court with a clear finding that the tenant
wants to delay the case regularly because he is the
tenant and getting benefit of the property. The
application of the tenant was held to be mala fide.
49. The High Court without even adverting to the
earlier order of the trial court dated 16.05.1997,
where categorical findings had been recorded
against the tenant, choose to allow the application
under Order 9 Rule 13 filed by the tenant to recall
exparte
decree, which cannot be said to be correct
exercise of jurisdiction under Article 226 of the
Constitution.
50. We, thus, answer question No.4 in the
following words:
The tenantrespondent
has not made out any
sufficient ground to allow the application
under Order 9 Rule 13 and the High Court
committed error in interfering with the order
of the trial court rejecting such application
which was also confirmed by the District
Judge.
QUESTION NO.5
51. The High Court in its impugned judgment has
referred to judgment of this Court in Kailash
versus Nanku and others, reported in (2005) 4 SCC
480,where this Court has laid down that all rules
44
of procedure are the hand made of justice. In the
above case, this Court was considering the power of
the Court to permit extension of time for filing of
written statement beyond a time as fixed under
Order 8 Rule 1 CPC. The observations in paragraphs
28 and 29, which have been relied by the High
Court, where in reference to Order 8 Rule 1 CPC,
this Court held that provisions under Order 8 Rule
1 CPC are directory.
52. The above judgment was not applicable in the
facts of the present case. Present was not a case
where there was any procedural breach at the part
of tenantrespondent.
The tenantrespondent
has not
complied with condition precedent for
maintainability of the application under Order 9
Rule 13 as laid down in Section 17 proviso.
53. The High Court in paragraph 20 of the judgment
has made following observations:45
"20. Since the learned Courts below
have adopted a hypertechnical
and
pedantic approach while considering
the applications under Order 9 Rule 13
C.P.C. and Section 5 of Limitation
Act, filed by the petitioner,
therefore the impugned orders are
liable to be quashed.”
54. The above observations of the High Court
cannot be approved. The trial court has rejected
the application of tenant under Order 9 Rule 13 not
adopting any hypertechnical
and pedantic approach
rather on the finding that there was noncompliance
of proviso to Section 17 of the Act, 1887, hence,
the application deserves to be rejected.
Requirement under proviso to Section 17 can neither
be said to be hypertechnical nor pedantic but the
same was the requirement of law and condition
precedent for maintainability of application under
Order 9 Rule 13.
46
55. The question no.5 is answered as follows:
The High Court is not right in its view that
trial court and Revisional Court has taken
hypertechnical and pedantic approach while
considering the application under Order 9 Rule 13
of CPC and Section 5 of the Limitation Act.
56. In view of the foregoing discussions, we are
unable to sustain the judgment of the High Court
dated 13.12.2018. The judgment dated 13.12.2018 as
well as the order dated 24.05.2019 rejecting the
review application as well as consequential order
passed by the trial court dated 24.05.2019 are set
aside. The order of the trial court dated
19.04.2007 rejecting the application under Order 9
Rule 13 of the respondent is upheld.
57. In view of the facts of the present case
especially the fact that the appellant has not been
able to reap the benefit of the decree which was
47
passed in his favour on 31.03.1998, we direct the
Executing Court to execute the decree and put the
appellant in possession along with the payment of
entire decretal amount up to date within a period
of three months from the date the copy of judgment
is produced before the Executing Court.
58. The appeals are allowed with costs of
Rs.25,000/to
be paid by the respondent to the
appellant before the Executing Court.
......................J.
( ASHOK BHUSHAN )
......................J.
( R. SUBHASH REDDY )
New Delhi,
March 03, 2021.
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