Supreme Court - Daily Orders
Satish Kumar Chawla vs Ranjana Pathania &Amp Anr on 28 April, 2015
Bench: Ranjan Gogoi, N.V. Ramana
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ITEM NO.8 COURT NO.8 SECTION X
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
PETITION(S) FOR SPECIAL LEAVE TO APPEAL (C) NO(S). 12599/2014
(ARISING OUT OF IMPUGNED FINAL JUDGMENT AND ORDER DATED 26/02/2014
IN CR NO. 1/2014 PASSED BY THE HIGH COURT OF UTTARAKHAND AT
NAINITAL)
SATISH KUMAR CHAWLA PETITIONER(S)
VERSUS
RANJANA PATHANIA & ANR RESPONDENT(S)
(WITH INTERIM RELIEF AND OFFICE REPORT)
Date : 28/04/2015 This petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE RANJAN GOGOI
HON'BLE MR. JUSTICE N.V. RAMANA
For Petitioner(s) Mr. Prashanto Chandra Sen, Adv.
Mr. P. S. Sudheer, Adv.
Ms. Ankita Saikia, Adv.
Mr. Rishi Maheshwari, Adv.
Ms. Anne Mathew, Adv.
Ms. Anushruti, Adv.
For Respondent(s)
Mr. Ranbir Singh Yadav, Adv.
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal is allowed in terms of the signed order. [VINOD LAKHINA] [ASHA SONI] COURT MASTER COURT MASTER Signature Not Verified Digitally signed by Vinod Lakhina Date: 2015.05.05 17:35:22 IST [SIGNED ORDER IS PLACED ON THE FILE] Reason: 1 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4057 OF 2015 [Arising out of Special Leave Petition (Civil) No.12599/2014] SATISH KUMAR CHAWLA ...APPELLANT VERSUS RANJANA PATHANIA & ANR. ...RESPONDENTS ORDER
1. Leave granted.
2. The purport and effect of Section 17 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as “the Act”) particularly the proviso to clause (1) thereto is the sole question that has arisen for determination in the present appeal. The said question arises in the following facts.
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An ex parte decree of eviction was rendered by the learned trial Court against the first respondent on 14th March, 2013. The process of execution of the decree was initiated by the appellant-decree holder on 31st July, 2013. On 12th September, 2013 the first respondent filed an application under Order IX rule 13 for setting aside the ex parte decree along with an application for condonation of delay. On 2nd December, 2013 the respondent filed an application under Section 17 of the Act for permission to deposit security in lieu of the decretal costs. The said application was allowed by the learned trial Court on 4th December, 2013 primarily on the ground that the suit should be heard and adjudicated on merits. Aggrieved, the appellant moved the High Court of 3 Uttarakhand by way of Revision. The order of the learned trial court was affirmed by the High Court giving rise to this appeal under Article 136 of the Constitution of India.
3. We have heard the learned counsels for the parties. Section 17 of the Act is in the following terms:
“17. Application of the Code of Civil Procedure.-(1) The procedure prescribed in the Code of Civil Procedure, 1908 (5 of 1908), shall save in so far as is otherwise provided by that Code or by this Act, be the procedure followed in a Court of Small Causes, in all suits cognizable by it and in all proceedings arising out of such suits:
Provided that an applicant for an order to set aside a decree passed ex parte or for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give such 4 security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed.
(2) Where a person has become liable as surety under the proviso to sub-section (1), the security may be realised in manner provided by Section 145 of the Code of Civil Procedure, 1908 (5 of 1908).
4. The language of the proviso to Section 17(1) of the Act is unambiguous and clear. On a plain reading of the proviso to Section 17(1) of the Act, it would appear that the deposit or security in lieu of such deposit has to precede the application under Order IX rule 13 of the CPC for setting aside the ex parte decree. This very question came up for consideration before this Court and was answered in Kedarnath versus Mohal Lal Kesarwari and others [(2002) 2 SCC 16] by holding that Section 17 of the Act is 5 mandatory. This Court clearly held that the deposit or the application for furnishing security in lieu of deposit has to be on the basis of a previous application i.e. previous to the application under Order IX rule 13. Para 8 of the judgment in Kedarnath (supra) which clearly deals with the issue and indicates the above view of the Court may be usefully extracted below:
“8. A bare reading of the
provision shows that the
legislature has 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 6 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 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 of the Court.”
5. In the present case, there is no manner of doubt that the application under Section 17 of the Act was subsequent to the application filed under Order IX rule 13 of the CPC for setting aside the ex parte decree. The said application 7 therefore could not have been entertained and allowed. The view taken by the learned trial Court and the High Court being contrary to the decision of this Court in Kedarnath (supra), we allow this appeal and set aside the aforesaid orders of the learned trial Court and the High Court.
....................,J.
(RANJAN GOGOI) ....................,J.
(N.V. RAMANA) NEW DELHI APRIL 28, 2015