Heard learned counsel for the parties and perused the record.
The petitioner had filed an application under Order 9 Rule 13 of the Code of Civil Procedure in the Court of Judge Small Cause Court, Kanpur Nagar for setting aside the ex parte judgment and decree dated 28th March, 2006 passed in favour of the respondent whereby the S.C.C. suit no. 188 of 2005 was decreed ex parte. The said application of the petitioner was registered as Misc. Case No. 48/74/2006 Smt. Shahjahan Begum Vs. Smt. Nigar Kauser. Before filing the said application the petitioner appears to have presented a tender for an amount of Rs. 12,254 in compliance of the provisions of Section 17 of the Provincial Small Cause Court Act i.e. on the same date when the application under Order 9 Rule 13 of the Code of Civil Procedure was filed. An application was moved stating that the petitioner has deposited the tender on 18th August, 2006 which may be accepted towards compliance of Section 17 of the Act. The court below allowed the said application of the petitioner. Respondent filed her objection stating that the entire amount has not been deposited as the petitioner had not paid the accrued damages pendentelite interest and mesne profit which forms a part of the decree. He further prayed that the application for setting aside the ex parte judgment be dismissed for want of compliance of Section 17 C.P.C. The Court below in the circumstances called for a report from the Munsarim who vide his report dated 30th August 2006 reported that a sum of Rs. 16,273 was to be deposited by the tenant, however who has deposited only a sum of Rs. 12,254 with deficiency of Rs. 4,019/-. An application thereafter was moved by the petitioner stating that payment of balance amount towards decretal amount be accepted. It was opposed by the land-lady on the ground that the entire amount had to be deposited along with application on the first date of hearing. The Court below dismissed the application by its order dated 25.9.2006. Aggrieved by the aforesaid order the petitioner preferred a revision no. 59 of 2006 under Section 25 of the Act interalia stating that the Court below has committed an illegality and mis-interpreted the provisions of Section 17 of Small Causes Courts Act as the court below has not taken into account the rent deposited under Section 30 of U.P. Act XIII of 1972 which stood deposited upto the month of August, 2005 over and above the amount of Rs. 12,254/- which was deposited by the petitioner. The Revisional Court dismissed the revision. Holding that Section 17 of the said Act provides for the applicability of Code of Civil Procedure and a proviso has been inserted whereby the entire amount due under the decree has to be deposited or security has to be given for the performance of the decree, before the application can be heard. It is contended by the counsel for the petitioner that in the present case the courts below have taken a narrow view of the provisions of Section 17 of the Act and have not taken into account the deposits made by the petitioner under Section 30 of U.P. Act No. XIII of 1972 which if taken into consideration would equal to the amount due under the decree passed in favour of the respondent. The only contention raised by the counsel for the petitioner is that he had deposited the balance amount on the subsequent date if the report was received in deposit amount of rent hence he should be given benefit of Section 17 of the Small Cause Courts Act.
Per Contra Sri Manish Tandon, learned counsel for the respondent has relied upon the judgment rendered in Civil Revision No. 741 of 2003, Jai Prakash Pandey Vs. Babloo Lal Jaiswal decided on 5.9.2009 by His Lordshi Prakash Krishna, J. wherein with regard to proviso to Section 17 of Small Causes Court Act observed and and held thus:-
The said proviso came up for consideration before the Apex Court in the case of Kedar Nath Vs. Mohan Lal Kesarwani & others (supra) wherein the Supreme Court has held as follows:-
"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 file. We think that it may be file 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, the application of the Court. "(Emphasis supplied).
In the case on hand, the application for setting aside the ex parte decree was not accompanied by the requisite deposit in the Court of the amount due and payable by the tenant under the decree. Only a sum of Rs. 20,000/- was deposited while as a mater of fact a sum more than Rs. 33,200/- was required to be deposited. The deficiency has been sought to be made good subsequently by making a deposit of Rs. 25,000/- on 19.4.2003. The law requires that the requisite deposit as per the provisions to Section 17(1) of Provincial Small Causes Court Act has to be made on a previous application filed by the applicant in this behalf. The application under Order 9 Rule 13 was made on 21.3.2003 and on that date only a sum of Rs. 20,000/- was deposited. Any deposit made subsequent to the date of the application i.e. 21.3.2003 in the present case is of no avail to the tenant (applicant).
To the same effect is the judgment rendered in paragraph 15 of the judgment rendered in 2007(67) ALR 253, Khusihal Verma Vs. Om Prakash Singh, wherein it has been held is hereunder:-
"In view of the admitted fact by him that the delay has occurred and he has not complied with the mandatory provisions of section 17 of the Act, the petitioner is not entitled to any relief. The impugned orders do not warrant any interference in extra ordinary jurisdiction under Article 226 of the Constitution of India. No illegality or infirmity could be pointed out by the petitioner. The petition is accordingly dismissed."
In 1997(2) A.R.C. 407 Mohd. Naeem Vs. IIIrd Additional District Judge, Lucknow, wherein the Court is held that the proviso 2 Section 17(1) of the Small Causes Court Act is mandatory and if the provisions are not complied with i.e. mesne profit and pendetelite damages have not been deposited by tenant or other amount as decreed, it would be sufficient compliance of the mandatory provisions of Section 17 of the Small Causes Court Act and also submit in this report, judgment rendered by the Apex Court in 2002 (1) CRC 8, Kedarnath Vs. Mohan Lal Kesarwani and others, wherein the Court has held that application is not accompanied to deposit all the amounts due, in Court it is payable to the land-lord, it is not compliance of mandatory provisions of Section 17 of the Small Causes Court, Act and that no subsequent application for dispensing with deposit of seeking leave of the Court for furnishing such security of decree.
Admittedly, in this case the whole of the decretal amount was not deposited on the first date of hearing and by subsequent application desire to rectify non compliance of the mandatory provisions was expressed. This has rightly not been permitted by the Courts below and there appears no illegality or infirmity in the order of the courts below.
Both the writ petitions are disposed of accordingly.
Order date:-9.9.2010 prabhat