The petition under Article 227 of the Constitution of India namely Civil Misc. Petition No.2023 of 2016 (Shri Panchayati Akhara Mahanirvani Vaidik Sanatan Bhartiya Dharmik Sanskriti Sansthan v. Ram Prakash Pathak & Anr.) has been filed challenging the judgment and order dated 1.2.2016 passed by the Additional District Judge, Court No.8, Varanasi in SCC Revision No.17 of 2015 (Ram Prakash Pathak v. Nagendra Upadhyay & Anr.) filed by the respondent No.1 whereby the Court below has set aside the order dated 30.5.2015 passed on the Application Paper No.4 Ga under Order IX Rule 13 C.P.C and remanded the matter back to the trial court to decide the said Application on merits after giving due opportunity of hearing to the parties concerned.
In the connected Writ Petition No.58290 of 2014 (Shri Panchayati A.M.V.S.B.D.S. Sansthan v. A.D.J. Varanasi & 3 Ors.), the order dated 17.7.2013 passed by the Judge, Small Causes Court namely the Civil Judge, Varanasi in Misc. Case No.83 of 2012 (Ram Prakash Pathak v. Nagendra Upadhyay) on application under Section 17 of the Provincial Small Causes Court Act, 1887 (hereinafter referred to as 'the Act, 1887) and the order passed by the Revisional Court dated 15.9.2014 in S.C.C. Revision No.21 of 2013 (Panchayat Akhara v. Ram Prakash Pathak & Anr.) are under challenge.
Learned counsel for the petitioner has submitted that the Application Paper No.4 Ga filed for setting aside the ex-parte decree dated 9.12.2011 was not accompanied by an Application under Section 17 of the Act, 1887. The Application under Order IX Rule 13 C.P.C. was filed by the tenant-respondent No.3 on 6.8.2012 with the assertion that he came to know about the ex-parte decree dated 9.12.2011 only on 26.7.2012 when he met respondent No.1 namely Nagendra Upadhyay at Varanasi.
It is stated that the application Paper No.13 Ga under Section 17 of the Act, 1887 for furnishing security was moved subsequently on 12.9.2012 i.e. after a gap of one month and six days. The petitioner filed objection Paper No.17 Ga contesting the said application on the ground that it was required to be moved prior to filing of the application under Order IX Rule 13 C.P.C for recall of the ex-parte decree or at least along with the said application. The Court below had no jurisdiction to extend time for depositing the decreetal money or furnishing security in lieu thereof, on a delayed application moved under Section 17 of the Act, 1887 by the tenant-judgment debtor.
The Judge Small Causes Court allowed the Application Paper No.13 Ga filed under Section 17 of the Act, 1887 on the wrong premises that only rider to entertain the application under Order IX Rule 13 C.P.C. is that it cannot be heard or decided in case of non-compliance of Section 17(1) of the Act i.e. in case of non-furnishing of security or deposit of decreetal money, however, there is no bar in entertaining an Application under Section 17 of the Act, 1887, if filed, before presentation i.e. hearing on the application under Order IX Rule 13 C.P.C.
The Revisional Court in the order dated 15.9.2014 also took the same view and held that since the Application under Order IX Rule 13 C.P.C. has not been presented for hearing till filing of the application under Section 17 of the Act, 1887 and as such there was no legal impediment in entertaining the said application. The order passed by the S.C.C. Court in allowing the tenant-applicant to furnish the security on the application Paper No.13 Ga dated 12.9.2012 was affirmed.
On the other hand, the application Paper No.4 Ga under Order IX Rule 13 C.P.C. for setting aside ex-parte decree was rejected vide order dated 30.5.2015 on the ground that the tenant-applicant did not comply with the mandatory requirements of Section 17 of the Act, 1887. The application for furnishing security was moved after more than 30 days of moving application under Order IX Rule 13 C.P.C. for recall of ex-parte decree. The provisions of Section 5 of the Limitation Act have no application to condone the delay in making deposits under Section 17 of the Act, 1887. Thus, the delay in filing the application under Section 17 of the Act, 1887 was fatal.
In S.C.C. No. 17 of 2015 the Court below allowed the Revision by order dated 1.2.2016 setting aside the order dated 30.5.2015 on the ground that the application under Section 17 of the Act, 1887 was already allowed on 17.7.2013 and the request of the applicant to furnish security in lieu of the decreetal money has already been accepted. Further, it is noted that the application Paper No.14 Ga under Section 5 of the Limitation Act has been allowed vide order dated 2.3.2015 at the cost of Rs.300/- and the delay in filing the application under Order IX Rule 13 C.P.C. for recall of ex-parte decree has been condoned. The matter was remanded back to the Court below to decide the application Paper No.4 Ga under Order IX Rule 13 C.P.C. on merits.
Challenging these orders dated 17.7.2013, 15.9.2014 on the application 13 Ga & of dated 1.2.2016 passed on application 4 Ga, the submission of the learned counsel for the petitioner is that the compliance of Section 17 of the Act, 1887 is mandatory. The period provided under Article 123 of the Limitation Act to set aside the ex-parte decree is 30 days from the date of decree or from the date when the applicant had knowledge of the decree, in a case where summons or notice was not duly served.
In the instant case, the applicant got knowledge of the decree as per his own case at least on 26.7.2012. The application under Order IX Rule 13 C.P.C. was moved on 6.8.2012 without giving any explanation for delay. The application Paper No.14 Ga under Section 5 of Limitation Act was filed on 14.8.2012 with the prayer to condone the delay in filing application under Order IX Rule 13 C.P.C. However, prior to filing of application under Order IX Rule 13 C.P.C., neither the decreetal money was deposited nor an application was moved under Section 17 of the Act, 1887 to furnish the security in lieu of the decreetal money. The provisions of Section 17 of the Act, 1887 are mandatory as has been held by the Apex Court in the case of Kedarnath v. Mohan Lal Kesarwani & Ors1.
So far as the view taken by the Revisional Court for setting aside the order dated 30.5.2015 of rejection of application Paper No.4 Ga under Order IX Rule 13 C.P.C. is concerned, the contention is that the Revisional Court had erred in observing that since the application under Section 5 of the Limitation Act had been allowed on 2.3.2015 after imposing cost upon the applicant, there was no reason before the Court below to reject the application for recall of the ex-parte decree.
The submission is that any amount deposited after expiry of 30 days from the date of knowledge of the ex-parte decree cannot be accepted by the Court below. There is no provision under Section 17 of the Act, 1887 conferring power upon the Court to condone the delay for complying the condition to deposit the decreetal money. For maintaining the application under Order IX Rule 13 C.P.C., substantial compliance of provisions of Section 17 of the Act, 1887 is mandatory.
Reliance is placed upon the Division Bench judgment of this Court in Raj Kumar Makhija & Others v. M/s. S.K. And Co. & Others. 2. Learned counsel for the petitioner has also placed reliance upon the judgments of this Court in Roshan Lal & Ors. v. Rishi Pal Singh & Ors.3 and in Kusum Devi (Smt.) v. Ram Ji Verma 4.
On the other hand, learned counsel for the respondent No. (1) namely Ram Prakash Pathak placing reliance upon the judgment of this Court in the cases of Prem Chandra Mishra v. II Additional District Judge, Etah & Ors.5, Prabhu Dayal v. The District Judge Saharanpur and Ors.6 and the decision in Suresh Chand v. VIIth Additional District Judge, Muzaffarnagar & Ors. 7, submits that looking to the summary nature of jurisdiction exercised by the Small Causes Court Act, the Court has to construe Section 17 of the Act, 1887 liberally to condone the delay so as to make the substantial compliance of the said provision otherwise it would be too harsh to non-suit the applicant. In the interest of justice, the insistence of the Court should be for decision on merits after opportunity and contest rather than ex-parte.
Referring to the observations made by this Court in Suresh Chand (supra), it is stated that Section 17 of the Act, 1887 being procedural in nature has to be interpreted in such a way that it may advance justice and facilitate to meet its end.
The object of Section 17 of the Act, 1887 is to ensure that the decree holder/landlord is not harassed at the hands of unscrupulous applicant/tenant who has avoided receipt of summons or the proceedings before the trial court and moved application for setting aside the ex-parte decree at the later stage on the pretext that they were not aware of the decree.
In the present case, the respondent No.1 moved an application under Section 17 of the Act, 1887 with due diligence, before, the application under Order IX Rule 13 C.P.C. was presented/came up for hearing before the Court below. The interest of the landlord has been duly protected by the Court below by allowing the applicant-tenant to furnish security in lieu of the decreetal money. After application under Section 17 of the Act, 1887 was allowed on 17.7.2013 and the order was affirmed in Revision, there was no occasion before the trial Court to reject the application Paper No.4 Ga under Order IX Rule 13 C.P.C by a subsequent order dated 30.5.2015.
The Revisional Court had rectified the mistake by passing order dated 1.2.2016 and rightly directed the trial court to decide the application under Order IX Rule 13 C.P.C. on merits.
Having heard learned counsel for the parties and perused the record.
There is no dispute about the fact of filing of the application under Section 17 of the Act, 1887 subsequently by the tenant. The application for recall of the ex-parte decree was filed on the ground that the summon or notice was never received by the applicant as he was not residing in Varanasi.
In the application for recall of ex-parte decree, the applicant states that he came to know about the ex-parte decree only on 26.7.2011 and thereafter on the legal advice of his counsel, he moved an application on 6.8.2012 for recall of the ex-parte decree dated 9.12.2011 and further moved an application dated 14.8.2012 for condoning the delay in moving the said application. However, no application under Section 17 of the Act, 1887 was filed till 12.9.2012 when for the first time, the applicant-tenant pleaded that he was ready to furnish security in lieu of the decreetal money from March 2008 till September 2012.
The Judge Small Causes Court allowed this application on 17.7.2013 on the premise that the request to furnish the security could be accepted till the date of disposal of the application under Order IX Rule 13 C.P.C. It has failed to consider that under Aricle 123 of the Limitation Act, 1963, the application to set aside ex-parte decree has to be moved within a period of 30 days from the knowledge of the decree. The delay, if any, in presentation of application under Order IX Rule 13 C.P.C. has to be explained in the application itself.
Moreover, as per proviso to Section 17 of the Act, 1887 the decreetal money has to be deposited by the applicant at the time of presentation of application for setting aside the ex-parte decree or in alternative the application can be moved for furnishing security for the performance of the decree. That means the applicant who is seeking an order to set aside the ex-parte decree has to deposit the decreetal money due from him in the Court within 30 days from the knowledge of the decree or move an application under the proviso to Section 17 of the Act, 1887 to furnish security for the performance of the decree.
It is a settled law that the provisions of Section 17 of the Act, 1887 are mandatory and non-compliance thereof would be fatal for the applicant who seeks for setting aside of the ex-parte decree (Reference to "Kedar Nath" (supra). It is also settled that there is no provision under Section 17 of the Act, 1887 conferring power on the Court to condone the delay in compliance thereof. The provisions of Section 5 of the Limitation Act have no application and any delay in compliance of the proviso to Section 17 of the Act, 1887 cannot be condoned by the Court (Reference to "Raj Kumar Makhija" (supra). The applicant has no choice. In order to maintain the application for setting aside the ex-parte decree, the applicant has to fulfill any of the alternative conditions provided in the proviso to Section 17 of the Act, 1887.
In case such a condition is not fulfilled, there cannot be any valid presentation of the application for setting aside the ex-parte decree. If there is no valid presentation, the Court cannot assume jurisdiction. The question of entertaining application under Order IX Rule 13 C.P.C. for setting aside the ex-parte decree goes to the root of assuming the jurisdiction by the Court. The Court cannot assume jurisdiction inasmuch as in absence of compliance of such condition, there is no application in the eye of law. The object behind Section 17(1) of the Act is to protect the interest of the landlord from further harassment and to secure/ensure payment of rent and to put the unscrupulous tenant to term to deposit the rent due against him before giving the opportunity of asking for consideration of application for setting aside the ex-parte decree.
In the instant case, admittedly the tenant did not move the application under proviso to Section 17 of the Act, 1887 for furnishing of security for a period of more than 30 days from the knowledge of the ex-parte decree and moreover the application under Order IX Rule 13 C.P.C. was not accompanied by a deposit in the Court of the amount due from the applicant under the decree. There is no compliance of any of the conditions provided in the proviso to Section 17 of the Act, 1887 at all before moving the application under Order IX Rule 13 C.P.C. much less the substantial compliance by the applicant-tenant.
The reliance placed by the learned counsel for the petitioner upon the judgments of this Court in Prem Chandra Mishra (supra), Suresh Chand (supra) & Prabhu Dayal (supra) is misplaced inasmuch as the said cases are distinguishable on the facts and circumstances of the present case.
In view thereof, the order dated 1.2.2016 passed by the Revisional Court namely the Additional District Judge, Court No.8, Varanasi in S.C.C. Revision no.17 of 2015 cannot be sustained in the eye of law. The order passed by the S.C.C. Court dated 17.7.2013 on application 13 Ga passed by the Revisional Court is wholly without jurisdiction. The order dated 15.9.2014 passed by the Revisional Cout in S.C.C. Revision No.21 of 2013, accordingly, cannot be sustained.
Consequently, the order dated 17.7.2013 passed by the Judge Small Causes Court in Misc. Case No.83 of 2012 (Ram Prakash Pathak v. Nagendra Upadhyay), the order dated 15.9.2014 passed by the Additional District Judge, Court No.9, Varanasi in S.C.C. Revision No.21 of 2013 (Panchayat Akhara v. Ram Prakash Pathak & Anr.) and the order dated 1.2.2016 passed in S.C.C. Revision no.17 of 2015 are hereby set aside. The order dated 27.5.2016 in Misc Case No.83 of 2012 is also liable to be set aside.
The order dated 2.3.2015 passed on application under Section 5 of the Limitation Act is of no consequence.
All three connected petitions namely the Matter under Article 227 No.2023 of 2016 (Shri Panchayati Akhara Mahanirvani Vaidik Sanatan Bhartiya Dharmik Sanskriti Sansthan v. Ram Prakash Pathak & Anr.), the Writ Petition No.58290 of 2014 Shri Panchayati A.M.V.S.B.D.S. Sansthan v. A.D.J. Varanasi & 3 Ors.), & Matter Under Article 227 No.5539 of 2016 (Shri Panchayati Akhara Mahanirvani V.S.B.D.S.S. v. Ram Prakash Pathak & Anr.) are, consequently, allowed.
No order as to cost.
The consequences of this order will follow.
(Sunita Agarwal, J.) Order Date :- 22.8.2016 Jyotsana