Allahabad High Court
Khusihal Verma vs Om Prakash Singhania on 2 February, 2007
Equivalent citations: 2007(3)AWC3107, AIR 2007 (NOC) 1487 (ALL.) = 2007 (3) ALJ 89, 2007 (3) ALL LJ 89, 2007 A I H C 1746, (2007) 67 ALL LR 253, (2007) 3 ALL WC 3107, (2007) 1 ALL RENTCAS 894
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
JUDGMENT Rakesh Tiwari, J.
1. I have heard counsel for the parties and perused the record. This petition has been filed praying for the following reliefs:
1. Issue a writ, order or direction in the nature of certiorari quashing the order dated 25.4.2006, passed by the Additional District Judge, Court No. 3, Kanpur Nagar (Annexure-8) passed in S.C.C. Revision No. 56 of 2005 and Khusihal Verma v. Om Prakash and the order dated 23.3.2005, passed by J.S.C.C, Kanpur Nagar in Case No. 21/74 of 2002 (Annexure-5 to the writ petition).
2. Issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
3. Award cost of the petition to the petitioner.
2. The facts culled out of the record are that the petitioner is the tenant of one khapraildar room of House No. 84/59, Sharab Mill Ka Ahata, J. K. Cotton Mill, Gate No. 2 AnwarganJ, Kanpur and the respondent is the landlord of the said aforesaid premises. The respondent filed J.S.C.C. Suit No. 137 of 1988 against the petitioner for ejectment on the ground of arrears of rent and damages which was decreed ex parte by the Judge Small Causes Court, Kanpur Nagar on 31.3.1989. When the petitioner came to know about the ex parte decree having been passed against him he moved an application and affidavit under Order IX, Rule 13, C.P.C. on 23.3.2002 and 26.3.2002 for setting aside ex parte decree. The application aforesaid was registered as Misc. Case No. 21/74 of 2002. The petitioner deposited Rs. 12,500 through tender (13Ga) and the respondent also filed his objection on the same date and inter alia that the application filed by the petitioner under Order IX, Rule 13 be set aside on the ground that he has not made the compliance of Section 17 of the Provincial Small Causes Courts Act, 1887 (hereinafter referred as P.S.C.C. Act, 1887) which is mandatory regarding the Judgment debtor to furnish security for due compliance of the decree sought to be set aside.
3. It is urged that on 27.5.2002 the petitioner moved application (19Ga and 20Ga) alongwith affidavit before the J.S.C.C, Kanpur Nagar for granting him permission to file security in compliance of the provision to Section 17 of P.S.C.C. Act, 1887 and for fixing the amount of security to be furnished by him but the Judge Small Causes Court, Kanpur Nagar, illegally, arbitrarily and without considering the fact that the petitioner had deposited the entire decretal amount and he moved the application dated 26.3.2002 as well as 27.5.2002 for making the compliance as required under Section 17(1) of the P.S.C.C. Act, 1887 and was always ready and willing to furnish the security but the J.S.C.C. rejected the application dated 27.5.2002 by his order dated 23.3.2005.
4. It is also urged that aggrieved by the aforesaid order dated 23.3.2005, passed by J.S.C.C, Kanpur Nagar, the petitioner filed S.C.C. Revision No. 56 of 2005 before the District Judge, Kanpur Nagar, on the ground that the court below illegally held that the provisions of Section 17 of the Act has not been complied by the petitioner which was also dismissed by the revisional court on inadequate grounds by its order dated 25.4.2006, ignoring the arguments of the petitioner.
5. The Court by the judgment impugned has held that the provision of Section 17 of the P.S.C.C. Act, 1887, has not been compiled with. As such the petitioner is not entitled to the benefit of the aforesaid premises.
6. The contention of the counsel for the petitioner thus in brief is that the court below has failed to consider that the petitioner sought permission from the Judge Small Causes Court on 26.3.2002 for furnishing security as required under Section 17 of the P.S.C.C. Act, 1887 and again he moved an application on 27.5.2002 for permission to file security as required under Section 17 of the Act but the J.S.C.C, Kanpur Nagar, illegally and arbitrarily and on inadequate grounds rejected the said application. It is urged by counsel for the petitioner that the petitioner in compliance of ex parte decree deposited a sum of Rs. 12,500 towards the decretal amount and also took necessary steps for taking necessary compliance as required under the Act but inspite of best effort to comply the provision of Section 17(1) of the Act, the Courts have illegally shut the door by not permitting him to give security under the aforesaid provisions. It is lastly urged that the order passed by the Court is illegal and bad in the eye of law.
7. I have heard counsel for the parties at length and perused the record. Annexure-1 is application dated 23.3.2002 by which the petitioner has prayed the Court to permit him to deposit the entire decretal amount under Section 17 of the Act. The application is as under:
Jheku th] fuosnu gS fd izkFkhZ us okn la[;k 137 lu~ 88 vkaseizdk'k cuke [kq'kgky oekZ esa ikfjr ,d Ik{kh; vkns'k o fMdzh dks fujLr fd;s tkus gsrq vkosnu Ik= fn;k gSA vkSj lkFk es /kkjk 17 y?kqokn vf/kfu;e ds vuqikyu esa leLr fMdzh /ku tek djus dh vuqefr iznku fd;s tkus gsrq izkFkZuk Ik= fn;k gSA izkFkZuk vr% izkFkZuk gS fd izkFkhZ dks crk;k tk;s fd izkFkhZ fdruk fMdzh /ku tek djs vkSj mDr vk'k; ds lEcU/k esa dksVZ eqUlfje o lEcfU/kr fyfid ls vk[;k eaxk yh tk;s A egku n ;k gksxhA izkFkhZ [kq'kgky oekZ fn0 23-3-02 }kjk enu eksgu ,MoksdsV
8. He also moved an application under Order IX, Rule 13 of C.P.C inter alia that he intends to diposit the entire decretal amount. This application is as under:
Jheku th] fuosnu gS fd izkFkhZ us okn la[;k 137 lu~ 88 vkaseizdk'k flagkfu;k cuke [kq'kgky oekZ esa ,d Ik{kh; fu.kZ; o fMdzh fnukafdr 31-3-89 fujLr fd;s tkus ,oa okn ds uEcj ij iqu% LFkkiuk gsrq vkns'k IX fu;e 12 tk0 nh0 ds vUrZxr izkFkZuk Ik= esa fn;k x;k gSA izkFkhZ /kkjk 17 y?kqokn vf/fu;e ds vuqikyu es leLr fMdzh /ku tek djus dh vuqefr iznku fd;s tkus dh d`ik dh tk;s egku n;k gksxh izkFkhZ [kq'kgky oekZ iq= jke ft;kou fn0 26-3-02 }kjk enu eksgu ,MoksdsV
9. It appears from the record that the objections were filed by the plaintiff-opposite party against the application of the defendant purporting to be under Section 17 of the Provincial Small Causes Court Act, 1887, inter alia that the petitioner by his application purporting to be under Section 17 of the Act as prayed only to deposit decretal amount which covers only a part of the decree but no security has been offered nor any request for furnishing security for compliance of the decree of ejectment has been made. One of the objections was that in view of the above provisions of Section 17 (Proviso) have not been complied with and the application under Section 17 of the Act as well as under Order IX, Rule 13 of C.P.C. for want of compliance of the proviso to Section 17 of the Act is liable to be rejected as the same has not been complied with.
10. It is stated that in reply to the objection filed aforesaid, the petitioner in paragraphs 11, 12 and 13 stated that for the first time he came to know about the statutory provision on 13.5.2002 that he has to deposit the decretal amount as well as gift security and that now he wants to deposit security. It is further averred in objection that the mistake in not depositing security has been admitted inadvertently and has occurred due to the wrong legal advice by his counsel as he had not given application previously for giving security. He is making prayer now by means of this application. The petitioner also prayed for condonation of delay in moving application praying for depositing security. Paragraphs 11, 12 and 13 are as under:
11- ;g fd ekuuh; mPp U;k;y; ds U;k;ewfrZ }kjk nh x;h O;oLFkk 'kiFkdRkkZ ds vf/koDrk dks loZizFke fnukad 13-5-02 dks laKku esa vk;h fd fMdzh dh /kujkf'k tek djus ds lkFk gh fu"dklu dh fMdzh ds vuqikyu esa flD;ksfjVh nkf[ky djkuk vko;'d gSA fnukad 14-5-02 dks 'kiFkdRkkZ dh iq=h dk fookg FkkA 'kiFkdrkZ chekj iM+ x;k vkSj fnukad 25-5-02 dks okil ykSVk A 12- ;g fd 'kiFkdrkZ tkucw>dj dkszbZ xyrh ugh dh gSA mfpr dkuwuh lykg dh =qfV ds dkj.k 'kiFkdRkkZ flD;ksfjVh nsus dk izkFkZuki= U;k;ky; eas ugh ns ldk gSA ftls 'kiFkdRkkZ vc ns jgk gSA 13- ;g fd mDr fLFkfr es fu"dklu dh fMdzh ds vuqikyu esa flD;ksfjVh nsus gsrq izLrqr fd;k x;k izkFkZuki= esa tks nsjh gqbZ gS] mlas U;k;fgr esa ekQ fd;k tkuk ,oa 'kiFkdRkkZ dks fu"dklu dh fMdzh ds vuqikyu esa flD;ksfjVh nkf[ky djus dh vuqefr iznku fd;k tkuk U;k;fgr esa vfr vko;'d gSA
11. The court below after considering laws cited by the parties and after perusal of the record held that the petitioner has complied with the provisions of Section 17 of the Act and fixed 4.7.2005 for further orders. The revisional court considering the case laws cited by the parties and facts and record held as under:
11- cekeys esa ekuuh; mPpre U;k;y; }kjk dsnkjukFk cuke eksgu yky ds'kjokuh] 2002 ¼1½ mPre U;k;y; iw.kkZihB jsUV dslsl ist 77 % 2002 ¼1½ AWC 502 ¼SC½ esa fn;s fu"d"kZ ij igqWprk gWw fd izfroknh @ fuf.kZr _.kh [kq'kgky oekZ izdh.kZ okn la0 21@74@02 [kq'kgky oekZ cuke vkaseizdk'k flagkfu;k esa ,d Ik{kh; fu.kZ; vkKfIr fnukafdr 31-3-89 esa] csn[kyh dh vkKkfIr ds lEcU/k es vkns'k IX fu;e 13 O;ogkj izfdz;k lafgrk ds vUrZxr fu.kZ; @ vkKkfIr dks fujLr djkus ds fy, izLrqr izkFkZuk Ik= vFkok dksà izfrHkwfr izLrqr ugha dh FkhA rFkk oknh @ vkKkfIr/kkjh vkaseizdk'k flagkfu;k }kjk vifRr izLrqr djus ij Loa; viuh =qfV ekurs gq, [kq'kgky oekZ us izkFkZuki= 19 x izLrqr fd;k Fkk] ijUrq v/khuLFk U;k;y; }kjk mDr izkFkZuki= ij mijksDr of.kZr leLr izko/kkuksa dks /;ku esa j[ks fcuk gh vkns'k fbukafdr 23-3-05 ikfjr dj fn;k tks fujLr fd;s tkus ;ksX; gS rFkk ;g iqujh{k.k Lohdkj fd;s gkus ;ksX; gSA
12. The provisions of Section 17 of the Act are mandatory. It has been held as far back as in 1927 in the case of Kawleshwar Lal v. Sutybarta Banerjee and Anr. AIR 1927 Pat 90, that the security or bond should be filed within time otherwise they are not acceptable. The perusal of Section 17 of the Act shows that the application has to be made prior to filing of the application for submission of decretal amount. Section 13 is as under:
13. When foreign judgment not conclusive. A foreign Judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except:
(a) where it has not been pronounced by a court of competent Jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of (India) in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to natural Justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in (India).
13. In this regard the reference may also be made in Sharif v. Suresh Chandra , it has been held that the application for security under provisions of Section 17 of the Act should be made prior to setting aside the ex parte decree. Admittedly, from the record it is apparent that the petitioner in the application Annexures-1 and 2 has not prayed that he may be permitted to give security that there was no previous application as stipulated in mandatory provisions of Section 17 of the Act. This is also apparent from paragraph 11 of this petition that where the petitioner has himself admitted whereas he has moved application in accordance with law because he was himself wrongly advised by his counsel.
14. From a perusal of the aforesaid conclusions of the revisional court, it is apparently clear that it relied upon the decision rendered by the Constitution Bench of Apex Court in 2002 in Kedar Nath Verma v. Mohan Lal Kesharwani that the petitioner had not deposited security or moved prior application as required under Section 17 of P.S.C.C. Act, 1887 and had accepted that he had committed an illegality in not complying with the aforesaid provision as well as decision rendered by this Court in this regard. In view of the clear admission by him in paragraphs 11, 12 and 13 of his application quoted in the body of the Judgment, there remains no doubt that the petitioner had not complied with the mandatory provision of Section 17 of P.S.C.C. Act, 1887 in which he was required to comply with in respect of the application filed under Order IX, Rule 13. The revisional court has rightly concluded that the order dated 23.3.2002, has been passed in mechanical manner without considering the provisions of law and decision rendered by the Apex Court and High Court in this regard.
15. An advocate is a professional. He cannot afford to commit such mistake nor the Court can take any such alleged mistake lightly for the purposes of condonation of delay. It appears that the petitioner has taken this plea of mistake advised by the counsel only in order to overcome legal hurdle posed by Section 17 of the Act and gain sympathy of the Court. 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 extraordinary 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.
16. Counsel for the petitioner at this stage submits that the petitioner may be granted sometime to vacate the premises in which he is tenant at the rate of Rs. 6.50 Paise. He undertakes on behalf of the petitioner that the petitioner will vacate the house in dispute within time allowed by this Court. In this view of the matter, the petitioner is granted two months' time to vacate peaceful possession to the landlord by 7th April, 2007. The petitioner will pay Rs. 500 per month as compensation/damage for use and occupation of the accommodation in dispute during this period.