1. Heard learned counsel for the petitioner and Sri Rashtrapati Khare, learned counsel for the respondents and perused the record.
2. Present petition has been filed challenging the impugned order 14.5.2019 passed by the Judge, Small Causes Court, Bareilly and the order dated 25.2.2020 passed by the revisional Court.
3. By the impugned order dated 14.5.2019 passed by the trial Court the application filed under Section 17 of Provincial Small Cause Court Act, 1887 (hereinafter referred to as the 'Act') has been rejected on the ground that the application was not maintainable in view of proviso to Section 17 of the Act. Revision filed against the same was also dismissed by the lower revisional court.
4. Challenging the impugned order, submission of learned counsel for the petitioner is that the application under Section 17 of the Act was filed along with the application under Order 9 Rule 13 CPC on the same date i.e. 5.10.2017. He submits that there is no dispute for this fact. Placing reliance on paragraph 9 of a decision of Hon'ble Apex Court in Kedarnath vs. Mohan Lal Kesarwani & Ors., 2002 (1) ARC 186, it is submitted that the application filed under Section 17 of the Act along with application under Order 9 Rule 13 CPC would be maintainable as it has been observed by Hon'ble Apex Court that it may be filed at any time upto the time of presentation of the application for setting aside ex parte decree or for review and the Court may treat it as a previous application. Paragraph of the said judgement in Kedar Nath (supra) is quoted as under:
"9. 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 judgement must be accompanied by a deposit in the Court of the amount due from the applicant under the decree or in pursuance of the judgement. 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 upto the time of presentation of the 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."
(Emphasis supplied)
5. Per contra, Sri Rashtrapati Khare, learned counsel for the respondents has supported the impugned orders and submits that application under Section 17 of the Act must have been filed previously i.e. before the filing of the application under Order 9 Rule 13 CPC.
6. Pure legal question is involved in the present case and exchange of affidavits is not necessary in this case as necessary facts are not in dispute. With the consent of parties present petition is being disposed of at the admission stage itself.
7. I have considered the rival submissions and perused the record.
8. It is not in dispute that both the applications were filed on the same date i.e. 5.10.2017. In paragraph 9 of Kedarnath (supra) it has been observed that application under Section 17 of the Act must be on record at the time upto the time of presentation of application for setting aside decree and it is the discretion of the court to treat it as previous application. It is not in dispute that both the applications were filed simultaneously. In Zulfiquar Hussain vs. Madan Gopal Chopra, 2012 (1) ARC 311, this Court has held that the application can be filed simultaneously and would be maintainable. Relevant paragraphs 12, 13, 17, 18, 19, 20 are quoted as above:
"12. The facts have been noticed above in detail. They are not much in dispute. There is no dispute that neither the entire decretal amount nor the security in lieu thereof was furnished by the tenant on the date of filing of the application for setting aside the ex parte decree. Security with delay was furnished subsequently and that too was short. Whether the proviso to Section 17(1) of the Act is mandatory or directory and whether the tenant has complied with the said proviso or not are the questions fall for determination in the present revision.
13. The proviso provided that along with the application for setting aside the ex parte decree, besides other things, the applicant is to deposit the amount due from him under the decree or furnish such security for the performance of the decree, as the court may, on a previous application made by him in this behalf, have directed. The proviso use the words "previous application". It means the application for permission to furnish security should be earlier than the application for setting aside the decree. An applicant can furnish only such security as the court have directed.
17. The aforesaid provision came up for consideration before the Apex Court in the case of Kedarnath (supra). The Apex Court noticed the various decisions given by the Allahabad High Court, which were relied upon by the landlord-applicant therein. It also noticed three decisions which were relied upon by the defendant-tenant therein. Out of three decisions relied upon by the defendant-tenant, one was Surendra Nath Mittal vs. Devanand Swarup and Anr., AIR 1987 Allahabad 132, one decision of Andhra Pradesh High Court and one decision of Bombay High Court. Apex Court has specifically laid down that the decisions relied upon by the defendant-tenant are single bench decisions and first two decisions are more or less ad hoc decisions, which do not notice the other decisions and the general trend of judicial opinion. The Apex Court specifically observed that the view propounded therein does not appeal to them and the third decision of the Bombay High Court does not lay down any general proposition of law and proceeds on its own facts.
18. After doing so, it laid down the law in para-8 of the report which is reproduced below, for the sake of convenience:
"8. A bare reading of the provision shows that the legislatures 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 or small cause 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 upto 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."
19. The above decision of Apex Court leaves no room for doubt.
(1)that the proviso is mandatory (2)the application seeking to set aside decree or review must be accompany by a deposit of decretal amount in court (3)the application for dispensation of deposit can be filed upto the date of filing the application for setting aside the decree (4)the proviso does not provide for the extension of time
20. Subsequently, this Court in the case of Shyam Shanker and others vs. Sahu Sarvesh Kumar and others, 2008 (3) ARC 115, followed the aforestated judgment of the Apex Court and has held that deposit of the decretal amount can be dispensed with by court if the application is accompanied along with the application filed under Order 9 Rule 13 of the C.P.C. A subsequent application for permission to furnish the security cannot be entertained."
(Emphasis supplied)
9. In such view of the matter, the orders impugned herein are not sustainable in the eye of law as admittedly both the applications as mentioned above were filed on the same date i.e. 5.10.2017 and should have been considered by the trial court on its own merit and such application filed under Section 17 of the Act could not have been rejected as not maintainable.
10. For the discussions made hereinabove, present petition stands allowed. The impugned orders dated 25.2.2020 and 14.5.2019 are set aside and the application filed under Section 17 of the Act stands restored to its number and shall be considered and decided by the court below on its own merit, preferably within a period of one month from the date of production of a self-verified copy of this order, which can be verified from the official website of this Court.
11. It is made clear that this Court has not considered the merits of the application filed either under Section 17 of the Act or application filed under Order 9 Rule 13 CPC.
No order as to costs.
Order Date :-8.2.2021 Abhishek