Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 599 of 2019 Petitioner :- Mahendra Singh Pawar Respondent :- Surendra Kumar Soni Counsel for Petitioner :- Ramendra Asthana,Rahul Saxena Counsel for Respondent :- Rishikesh Tripathi,Prashant Shukla
Hon'ble Manoj Kumar Gupta,J.
The instant petition is directed against the order dated 15.9.2014 passed by District Judge, Jhansi dismissing SCC Revision No.96 of 2014, order dated 9.9.2014 passed by Judge Small Causes, Jhansi in SCC Misc. No.4 of 2014 rejecting application under Order 9 Rule 13 CPC and the exparte judgement and decree dated 24.12.2013 in SCC Suit No.1 of 2013.
The brief facts necessary for disposal of the instant petition are as follows:-
The plaintiff-respondent instituted a suit in the Court of Small Causes being SCC Suit No.1 of 2013 for eviction of the petitioner (hereinafter referred to as 'the defendant') and recovery of pendentelite and future mesne profits. The defendant was tenant of a residential premises bearing House No.368 (old) and 759 (new) situated at Maseehganj Seepari Bazar, Tanki Wala Hata, Jhansi. It was alleged that the defendant-tenant was occupying the premises, detailed above, on a monthly rent of Rs.20/-. His tenancy was terminated by a notice served upon him. The eviction was sought on the grounds stipulated under Section 20 (2) (b) (c) of U.P. Act No.13 of 1972. The service of summons was held to be sufficient by refusal. The suit was decreed exparte on 24.12.2013 for recovery of pendentelite and future damages at the rate of Rs.20/- per month as well as for eviction. The defendant-tenant filed an application on 28.1.2014 praying for an order setting aside the exparte decree. The application was objected to by the plaintiff-respondent alleging that the defendant-tenant had full knowledge of the proceedings but he deliberately did not participate in the same. It was also alleged that the defendant-tenant had not complied with the provisions of Section 17 of the Provincial Small Cause Courts Act, 1887 (for short 'the Act') by not depositing the amount due from him under the judgement and decree of the trial court, consequently, the application was incompetent. It seems that upon such objection being filed, the defendant-tenant sought to make compliance of the requirement of depositing the amount due under the decree by depositing certain sum on 9.8.2014.
The trial court, by order dated 9.9.2014, rejected the restoration application after recording a finding that the defendant-tenant had failed to make compliance of the mandatory provisions of Section 17 of the Act. While taking the said view, the trial court placed reliance upon judgement of the Apex Court in Kedar Nath Vs. Mohal Lal Kesarwani and others, 2002 (1) ARC 186 and of this Court in Javed Alam Vs. Shamsuddin (2004) (2) JCLR 77 (Alld). The trial court observed that the money required to be deposited under Proviso to sub-section (1) of Section 17 could be deposited till the date of filing of the application. Any deposit made subsequently would be of no consequence. The defendant-tenant aggrieved by the order of the trial court rejecting the restoration application carried the matter in revision under Section 25 of the Act. The revisional court has dismissed the revision by order dated 15.9.2014 concurring with the view taken by the trial court.
Sri Ramendra Asthana, learned counsel for the petitioner made only one submission. He submitted that the defendant-tenant was not in default in payment of rent or damages as the amount was in deposit under Section 30 of the Act. He also submitted that the amount due under the decree was deposited before the trial court on 9.8.2014, thus complying with the requirements of Section 17 of the Act.
This Court in Smt. Sanju Dubey Vs. Khasgi Devi Ahilya Bai Holker Charities decided on 7.1.2019 (Matter under Article 227 No.4803 of 2015) after considering the judgement of the Supreme Court in Kedar Nath Vs. Mohal Lal Kesarwani and others and another Division Bench judgement of this Court in Raj Kumar Makhija and others Vs. M/s S.K. and Co. and others, 2012 (9) ADJ 337 held that the deposit required to be made under the Proviso to sub-section (1) of Section 17 should be deposited in the court prior to or till the time of filing of the restoration application. It has been held that any deposit made subsequently will not enure to the benefit of the tenant while reckoning compliance of the Proviso to sub-section (1) of Section 17 of the Act. The observations made in this regard in the said judgement are extracted below:-
“In Kedar Nath (supra), the Supreme Court, after taking into consideration the scheme of the Act, held that the provisions of Section 17 are mandatory and non compliance therewith would entail dismissal of the application. The non compliance cannot be condoned or overlooked by the court. It was also held that the application under Order 9 Rule 13 CPC must be accompanied by deposit in the court of the amount due from the applicant under the decree or in pursuance of the judgement or in case an application is filed seeking permission of the court to furnish security, such an application should be filed upto the time of presentation of the application under Order 9 Rule 13 CPC. The only exception is a case where previous application for furnishing security as prescribed under Section 17 is filed, but there is delay on part of the court in passing order on the application, it would not go against the applicant, as none can be made to suffer for the fault of the court. The relevant observations made by the Supreme Court in this regard are extracted below:-
"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 exparte 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."
A Division Bench of this Court in Raj Kumar Makhija (supra), considered the issue as to whether the proviso to Section 17 of the Provincial Small Causes Courts Act completely bars any rectification or removal of a bona fide error after the expiry of the period of limitation when substantial compliance by way of deposit of the decretal amount and furnishing security has been made within the period of limitation particularly when Section 5 of the Limitation Act, 1963 has been made applicable to Order IX Rule 13 of the Code of Civil Procedure? After considering the judgement of the Supreme Court in Kedar Nath (supra) and other decisions, the Division Bench held that although Section 5 of the Limitation Act applies in respect of filing of an application under Order 9 Rule 13 CPC, but the provisions thereof do not apply to making of deposit of the decreetal amount or stipulation regarding furnishing of security. In other words, it was held that although an application under Order 9 Rule 13 could be filed after period of limitation alongwith application under Section 5 of the Limitation Act, but the requirement of deposit of the decreetal amount or furnishing security for performance of the decree should be made upto the date on which application under Order 9 Rule 13 is filed. The Division Bench, in this regard, held as under:-
"22. On a plain reading of Section 5 of the Limitation Act, it would show that it will apply where an appeal or any application has been preferred beyond the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. On a plain reading of Section 5 of the Limitation Act would show that it applies to only (1) appeal or (2) making the application.
23. It follows that it does not apply to a deposit. Proviso to Section 17 talks about filing of a previous application for furnishing security, previous to the application for setting aside the ex parte decree. Thus the period of limitation for filing such application has been provided for under the said proviso. We can usefully refer a Full Bench judgment of this Court in the case of Messars Janta Cycle and Motor Mart versus Asst.Commissioner(J), II Sales Tax Kanpur Range, Kanpur and another AIR 1969 Allahabad 200.
27. There being no provision under section 17 of the Act for conferring power on Court to condone the delay in complying its conditions, it is not correct to say that Section 5 of the Limitation Act would still be available to such person who has committed default in making the full deposit, and the Court can condone the delay in making the deposit."
(emphasis supplied) Accordingly, this Court does not find any illegality in the view taken by the courts below in not taking into consideration the alleged deposits made on 9.8.2014 while considering the issue relating to compliance of Section 17 of the Act, the deposit having not been made before or upto the date of filing of the application under Order 9 Rule 13 CPC.
Coming to the next submission of learned counsel for the petitioner that certain deposits made under Section 30 had not been taken into consideration, it is pertinent to note that the documents relating to alleged deposits made under Section 30 were not filed before the courts below. Even no such plea was taken before them. It is for the first time before this Court that certain tenders have been brought on record to show deposit of rent of certain period in proceedings under Section 30 of the Act. There is a serious dispute between the parties regarding authenticity of these tenders, as it is alleged by the respondent-landlord, by filing a counter affidavit, that in fact no money is in deposit and the receipts filed are manipulated documents. Although the defendant-tenant, in reply, has brought on record certain certificates issued by the Treasury Officer to prove that the money was in deposit, but the fact remains that no such plea was taken before the courts below. Consequently, this Court is not inclined to go into the said aspect in exercise of supervisory power under Article 227 of the Constitution. Moreover, it is pertinent to note that the law requires the amount due under the decree to be deposited in the court alongwith application under Order 9 Rule 13 CPC, meaning thereby that the deposit should be made in the same proceedings. There is no provision for deducting the amount allegedly deposited in proceedings under Section 30 from the decreetal amount while seeking compliance of the Proviso to sub-section (1) of Section 17. It is another matter that in appropriate case, deposit made under Section 30 could be treated as a security where the person instead of depositing the amount, seeks permission to furnish security. Concededly, in the instant case, no such application was filed nor even the factum relating to deposit of rent in proceedings under Section 30 was pleaded before the trial court. In such view of the matter, this Court does not find any force, even in the second submission.
The petition lacks merit and is dismissed.
At this stage, Sri Ramendra Asthana, counsel for the petitioner prayed for six months time to vacate the disputed premises, to which learned counsel for respondent-landlord Sri Prashant Shukla has no objection.
Accordingly, the petitioner is permitted to remain in possession of the demised premises for a period of six months from today provided he furnishes an undertaking before the trial court within three weeks that he will hand over peaceful vacant possession to the respondent-landlord on or before expiry of six months from today and pays/deposits advance rent of six months at the rate of Rs.500/- per month within four weeks from today. In case of default of any of the above conditions, the protection granted herein shall stand vacated automatically and it shall be open to the plaintiff-respondent to execute the decree.
(Manoj Kumar Gupta, J) Order Date :- 25.1.2019 SL