Uttarakhand High Court
Bachan Singh Sajwan vs Bhagwati Prasad Dabral on 27 February, 2017
Author: Servesh Kumar Gupta
Bench: Servesh Kumar Gupta
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Civil Revision No. 66 of 2013
Bachan Singh Sajwan
....... Appellant
Versus
Bhagwati Prasad Dabral
........ Respondent
Mr. Sandeep Kothari, Advocate for the revisionist.
Mr. Narendra Bali, Advocate for the respondent.
Hon'ble Servesh Kumar Gupta, J.
By means of this revision the judgment dated 20.5.2013 rendered by the District Judge, Tehri Garhwal has been assailed. It would be worthwhile to note the controversy between the parties sans unnecessary details. The respondent Bhagwati Prasad Dabral was the tenant in the two shops of the landlord. SCC Suit No. 1/2011 was initiated by the landlord claiming the arrears of rent and the ejectment against the tenant. The repeated efforts were made by the Court to send the service by registered post, but every time such service could not be effected for one reason or the other and one of the pre-dominant reasons was that tenant was not found at his residence or had gone outside every time, and on information left at his address, he did not come to the post-office to receive the registered post.
In these constraints, the Court directed to get the service effected through publication and such publication was made on 03.6.2011 in the local newspaper circulated in the local hills in the vicinity. Then also, the defendant tenant did not pay any heed. So, the Court was left with no option but to pass an ex-parte decree on 2 13.10.2011. On taking further course, decree was executed on 25.6.2012. So, the tenant moved an application for setting aside the ex-parte decree on 30.6.2012 with the averments that he could know about the passing of the decree only on 27.6.2012. He sought permission by way of moving an application to deposit the arrears of rent, as envisaged under Section 17 (Proviso) of the Provincial Small Cause Courts Act, 1887. The learned Court below permitted him to deposit the amount at his own risk, as per provisions of the law. Even after this order, he could present the challan seeking permission to deposit the arrears of the rent to the tune of Rs. 83,126/- on 17.8.2012.
Accepting this deposit, as contemplated under the provision as indicated above, the Court set aside the ex-parte decree on 20.5.2013 vide the impugned judgment, which is under challenge in this revision.
I have heard the learned counsels of both the parties and perused the record. The learned counsel of the revisionist has relied upon a precedent of Hon'ble Apex Court 'Kedarnath vs. Mohan Lal Kesarwari and others' reported in (2002) 2 Supreme Court Cases 16, wherein it was held that application for setting aside the decree must be accompanied by deposit in the Court of the amount due or preceded by application seeking leave to furnish security.
It is obvious that application moved on 20.7.2012 by the tenant was not meant for seeking permission to deposit but otherwise security than cash and such cash was not deposited as is intended by the said provision. There was no need to seek any permission to deposit the arrears of rent, rather it was the pre-requisite 3 for moving an application to set aside the ex-parte decree, which was not complied with.
So, I am of the view that the finding of the learned Court below does suffer with infirmity. Consequently, I set aside the impugned judgment and sustain the ex-parte decree. Revision, thus, stands allowed.
The decretal amount, along with the interest if any, shall be permitted to be withdrawn by the landlord. The inventory of the articles found and taken in possession by the Court Amin at the time of handing over the possession to the landlord shall immediately be given to the tenant, if applied for.
(Servesh Kumar Gupta, J.) 27.02.2017 Prabodh