HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R.
RESERVED CIVIL REVISION DEFECTIVE No. 105 OF 2007 Zulfiquar Hussain-----------------------------------------Applicant Versus Madan Gopal Chopra---------------------------------Opposite party Hon'ble Prakash Krishna,J The landlord-applicant instituted S.C.C. Suit No. 35 of 2004 for recovery of arrears of rent, damages and ejectment of defendant-tenant from Shop No. 3 situate in House No. 33/127, Gaya Prasad Lane, Meston Road, Kanpur Nagar on the allegations that the defendant-tenant has failed to pay the rent in spite of service of notice determining the tenancy.
The suit was decreed ex parte as the defendant-tenant failed to appear and contest the suit, for recovery of arrears of rent due from 16th September, 2003 to 15th October, 2003 at the rate of Rs.1800/- per month and from 16th October, 2003 to 22nd April, 2004 at the rate of Rs.200 per day as damages, total Rs.38,000/- and for future damages at the rate of Rs.200/- per day along with costs of the suit by the judgment and decree dated 22nd May, 2005.
On 23rd January, 2006, an application to set aside the ex parte decree under Order 9 rule 13 C.P.C., was filed by the defendant-tenant. On the next day, another application dated 24th January, 2006 was presented with the prayer that the enclosed tender be passed by the court and the tenant may be permitted to deposit the decretal amount. It was stated that in pursuance of the ex parte decree, a writ for delivery of possession has been issued in Execution Case No. 3 of 2005 which has been received by the Amin wherein 27th January, 2006 is the date fixed. The defendant-tenant deposited Rs.43,710/- on that date.
The application for setting aside the ex parte decree was opposed by the landlord-applicant on number of pleas including that the said application is not maintainable as the defendant-tenant has not complied with the proviso to Section 17 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as ''the Act'). It was stated that the defendant-tenant has not deposited the entire decretal amount as was required under the ex parte decree. There being no application either for condonation of delay in making the deposit of the balance amount nor there is application for furnishing security, the application for setting aside the decree is liable to be dismissed as not maintainable.
A report with regard to amount due under decree was called for from the Munsarim by the court. He reported that a sum of Rs.1,73,510/- is due under the said decree, for the period upto 23rd January, 2006. Thereafter, on 25.9.2006, an application under Section 17(1) of the Act was filed with the prayer that the defendant-tenant may be permitted to furnish the security for the damages for the period 22nd May, 2005 to 31st January, 2006 at the rate of Rs.200/- per day amounting to Rs.53,400/-. Subsequently, another application dated 11th October, 2006 was filed for condonation of delay in filing the security or decretal amount on the allegations that the said security is being furnished to meet the objection of the landlord-applicant.
The court below by the order under revision has allowed the application under Order 9 Rule 13 C.P.C. and set aside an ex parte decree dated 22nd May, 2005. It rejected the contention of the landlord-applicant that proviso to Section 17 of the Act was not complied with in its letter and spirit. The decision of the Apex Court in the case of Kedarnath v. Mohan Lal Kesarwari and others, JT 2002 (1) SC 82, relied upon by the landlord-applicant was distinguished on the ground that in the said case, the tenant was evicted by the time. By the order under revision, he accepted the security furnished by the defendant-tenant in respect of deficient amount and condoned the delay in its filing.
Challenging the aforestated order, the present revision under Section 25 of the Provincial Small Cause Courts Act, 1887 has been filed.
Heard Shri P.K. Sinha, learned counsel for the landlord-applicant and Shri M.D. Singh, learned counsel for the defendant-tenant.
Elaborating the argument, the learned counsel for the landlord-applicant submits that the controversy involved in the present case is squarely covered by the aforesaid decision of the Apex Court in the case of Kedarnath (supra) and the said decision has been wrongly distinguished and not followed by the court below. The court below has passed the impugned order whimsically. The law on the point that the proviso to Section 17 of the Act is mandatory and the delay in filing the security or the decretal amount cannot be condoned, has always been the law, even prior to the above decision of the Apex Court.
Shri M.D. Singh, learned counsel for the defendant-tenant, on the other hand, submits that the deficiency in the decretal amount has been made good subsequently, by furnishing security bond which has been accepted by the order under revision and the delay has been condoned, there is no legal error in the order under revision.
Considered the respective submissions of the learned counsel for the parties and perused the record.
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.
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.
Under the ex parte decree dated 22nd May, 2005, the following amounts as calculated by the Munsarim, to which there is no dispute at the instance of either parties , were due.
(1) Arrears of rent from 16.9.2003 to 15.10.2003 - Rs. 1,800/-
Out of the said amount admittedly, only a sum of Rs.43,710/- was deposited in cash and that too on 24.1.2006. At the cost of repetition, it may be noted that the security was offered subsequently for a sum of Rs.53,400/- through application dated 25th September, 2006.
Evidently on the facts of the case, the tenant has not complied any of the conditions as provided for in the said proviso.
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.
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."
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 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.
In the case on hand, the application for setting aside the ex parte decree was not accompanied with the deposit of the entire decretal amount, amounting to Rs.1,73,510/- in the court. As against a sum of Rs.1,73,510/-, only a sum of Rs.43,710/- was deposited on 24th January, 2006. The subsequent security which was offered would not make the deficiency good in decretal amount as it was only for a sum of Rs.53,400/-.
In view of the decision of the Apex Court (supra), the Court has no power to extend the time for dispensation of the deposit of decretal amount.
Obviously, the court below has committed gross illegality in overlooking all these facts and condoned the delay having no such power in filing the application for security without recording any reason and in allowing the application under Order 9 Rule 13 C.P.C.. There is no escape from the proposition as laid down by the Apex Court that compliance of the said proviso is mandatory. In this view of the matter, the judgment and order under revision suffers with manifest error of law and cannot be allowed to stand.
The judgment under revision is quite confusing. It was rightly pointed out by the landlord that the court below while considering the question with regard to compliance of the proviso, took into consideration irrelevant things. Manner of service of notice under Section 106 of the Transfer of Property Act is not at all germane at the present moment. It would be seen at the time of the trial of the suit and not at this stage. The court below abruptly reached to the conclusion that as the notice under Section 106 of the Transfer of Property Act was served with the endorsement "not claimed", the service of notice in the absence of statement of Postman is no service. This approach so far the decision of the present application is wrong. It misdirected itself. It is not necessary to dwell upon this issue any further except to refer M/s Madan and Co., v. Wazir Jaivir Chand, AIR 1989 Supreme Court 630 and Uttam Chand and another v. VIth ADJ, Jhansi and others, 2000 (2) ARC, 362, wherein it has been held that such service of notice on tenant is valid.
It is baffling to note that the court below (Shri Shashi Mauli Tiwari, Additional District Judge, Court No. 13, Kanpur Nagar) has not followed the judgment of the Apex Court in the case of Kedarnath (supra). It was argued specifically before him that the said proviso has been held to be mandatory by the Apex Court. It has been the law earlier also. He distinguished the aforesaid decision (although he has observed that he has given full respect to the decision of the Apex Court which appears to be simply eyewash) on the pretext that in that case, the defendant-tenant had already been evicted. This was not taken as a relevant fact by the Apex Court in the case of Kedarnath (supra). The decision of the Apex Court is not at all based upon the said consideration. It is based on earlier pronouncements of this court noticed therein and by not approving the solitary pronouncement otherwise relied upon by the defendant-tenant therein. The court below has sought to distinguish the Apex Court's decision without there being any distinction, on its whims. A reading of the order under revision does not show that he has relied upon any ruling to support his view.
In view of the above discussions, the order under revision cannot be sustained. The revision is therefore allowed. The order under revision is set aside and the application filed by the defendant-tenant under Order 9 Rule 13 of the C.P.C. stands rejected.
The defendant-tenant is granted time to vacate the disputed accommodation upto 31st March, 2012 subject to the following conditions:
(1) The defendant-tenant shall deposit the entire arrears of rents and damages after adjusting the amount, if any, already deposited for the period upto 31st March, 2012 within a period of one month from today before trial court, at decreed rate.
(2) Within the aforesaid period, the defendant-tenant shall file an undertaking on affidavit before the trial court that he will vacate the disputed accommodation on or before 31st March, 2012 and shall hand over its peaceful vacant possession to the plaintiff landlord without creating any third party interest.
In case of default in compliance of any of the conditions stipulated above, the time granted shall stand vacated automatically.
In view of the above discussions, the present revision succeeds and is allowed with costs.
(Prakash Krishna,J) Date: 23rd December, 2011 MK/