Allahabad High Court
Smt. Sapna Khatri vs Abhishek Raha on 14 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 1627
Author: Vivek Chaudhary
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH [Reserved] Court No. - 19 Case :- S.C.C. REVISION No. - 123 of 2017 Revisionist :- Smt. Sapna Khatri Opposite Party :- Abhishek Raha Counsel for Revisionist :- Jai Narain Pandey,Pritish Kumar Counsel for Opposite Party :- Mohd.Nafees,B K Saxena Hon'ble Vivek Chaudhary,J.
1. Present civil revision is filed by the revisionist-tenant against the order dated 16.12.2017 passed by the Special Judge, Anti Corruption C.B.I., Court No.5, Lucknow exercising powers of Judge, Small Causes Courts in Misc. Case No.260 C of 2015. By the said order the Court below has rejected the application Paper No.B-3 of the revisionist-defendant filed under Order 9 Rule 13 of the C.P.C. for recalling ex-parte final judgment dated 06.05.2015. The application under Order 9 Rule 13 was rejected on the ground that the revisionist-defendant has failed to deposit the decreetal amount and cost of the case, as required under Section 17 of the Provincial Small Cause Courts Act, 1887 (SCC Act), while filing application under Order 9 Rule 13. The application under Order 9 Rule 13 was also rejected otherwise on merits.
2. Facts of the case are that revisionist-defendant was tenant of Shop No.1 situated on the ground floor of the Pratap Complex, Sheikhpur Kasaila, Faizabad Road, Lucknow of the landlord-respondents. After giving a notice, terminating the tenancy of the revisionist-defendant, respondent-landlord filed SCC Suit No.57 of 2011 for eviction and for recovery of rents amounting to Rs.23,700/-, for damages for use of occupation amounting to Rs.1080/- and also for damages penditilite and future at the rate of Rs.2,500/- per month. The said suit was filed on 31.05.2011. The revisionist-defendant appeared through counsel on 16.03.2012. It appears that thereafter revisionist-defendant stopped appearing in the case and, by order dated 03.05.2013, the Court below directed the case to proceed ex-parte against the revisionist-defendant. No steps were taken thereafter to recall order dated 03.05.2013. On 06.05.2015, the suit was decreed ex-parte for ejectment, arrears of rent and damages against the revisionist-defendant. On 07.08.2015, an application under Order 9 Rule 13 CPC (Paper No.B-3) was filed. Along with the application under Order 9 Rule 13, under Section 17 of the SCC Act, a deposit of Rs.30,000/- was made. The same was registered as Misc. Case No.260-C of 2015. The objections against application under Order 9 Rule 13 was filed and an objection was taken that the revisionist-defendant has not made complete compliance of Section 17 of the SCC Act and the deposit made falls short. On 04.05.2016 further amount of Rs.1,50,000/- was deposited and, thus, a total amount of Rs.1,80,000/- was deposited by the revisionist-defendant. The Court below after hearing the counsels for parties found that neither there is compliance of Section 17 of SCC Act, on the date of filing of application under Order 9 Rule 13, i.e., 07.08.2015, nor the case for recall is made out on merits.
3. Challenging the said order, counsel for the revisionist-defendant submits that revisionist-defendant had instructed her counsel to look after the matter and the counsel had assured her that he would look after the matter and would inform the revisionist-defendant as and when required. Counsel for the revisionist-defendant further submits that the ex-parte judgment dated 06.05.2015 passed by the Court below is vague and confusing and for the said reason, the entire amount could not be deposited by the revisionist-defendant. For the said purposes, he refers to concluding portion of the ex-parte order dated 06.05.2015 which reads:-
"आदेश oknh dk okn izfroknh ds fo:) vo'ks"k fdjk;k olwyh o csn[kyh o {kfriwfrZ ds ckcr ,di{kh; :i ls vkKIr fd;k tkrk gSA izfroknh dks vknsf'kr fd;k tkrk gS fd og fu.kZ; ds ,d ekg ds vUnj iz'uxr lEifRRk ls viuk dCtk gVkdj oknh dks gLrxr dj ns vU;Fkk oknh dks ;g vf/kdkj gksxk fd og iz'uxr lEifRRk dk dCtk U;k;ky; ls izkIr dj ldrk gSA " (emphasis added)
4. Loosely translated the relevant lines reads:- "case of plaintiff against the defendant for recovery of balance of rent and eviction and damages is decreed ex-parte. "
5. Counsel for the revisionist submits that in the plaint following reliefs were made by the plaintiff:-
"A. That a decree of ejectment in respect of the shop in suit more fully described in paragraph-1 above my kindly be passed in favour of the plaintiff and against the defendant.
B. That a decree of arrears of rent as mentioned in paragraph 3 to 5 above amounting to Rs.23,700/- (Rs. Twenty Three Thousand Seven Hundred), may kindly be passed in favour of the plaintiff and against the defendant.
C. That a decree for damages for the use and occupation of the shop in question w.e.f. 18.05.2011 (Eighteenth May, Two Thousand Eleven) till the date of filing the suit amounting to Rs.1080/- (Rs. One Thousand Eighty Only), may kindly be passed in favour of the plaintiff and against the defendant.
D. That a decree for damages penditilite and future at the rate of Rs.2,500/- (Rs. Two Thousand Five Hundred) per month till the date of actual delivery of possession of the shop in suit may kindly be passed in favour of the plaintiff and against the defendant. E. That the cost of suit may kindly be awarded to the plaintiff against the defendant.
F. The such other relief(s) which this Hon'ble Court may deem fit, just and proper in the facts and circumstances of the case may also be passed in favour of the plaintiff and against the defendant."
6. Thus, counsel for the revisionist-defendant submits that under relief-C a decree for damages was asked and under relief-D again a decree for damages was asked. It is not clear from the ex-parte judgment dated 06.05.2015, as to whether relief C or D or both are granted. Therefore, the revisionist-defendant, in compliance of Section 17 of the SCC Act, deposited the amount only under one head and the moment the same was objected to, she corrected the mistake and deposited damages under both heads. Learned counsel for revisionist-defendant has also placed reliance upon the followings judgments:-
(i) The State of West Bengal Vs. The Administrator, Howrah Municipality and Others, etc; reported in AIR 1972 Supreme Court 749;
(ii) Indian Statistical Institute Vs. M/s Associated Builders and Others; reported in AIR 1978 Supreme Court 335;
(iii) Lal Devi and Another Vs. Vaneeta Jain and Others; reported in (2007) 25 LCD 1291 (Supreme Court);
(iv) Jaswant Singh and Others Vs. Prakash Kaur and Others; reported in 2017 (3) ARC (Supreme Court)
7. On the other hand, learned counsel for respondents submits that the provision of Section 17 of the PSCC Act is very specific that the entire amount should be deposited before filing application under Order 9 Rule 13 C.P.C. and has been interpreted by the Supreme Court in case of Kedarnath Vs. Mohan Lal Kesarwari and Others; reported in (2002) 2 Supreme Court Cases page 16. He further submits that the Court below has specifically come to the conclusion that there is non-compliance of Section 17 of the SCC Act as well as the revisionist-defendant herself is responsible, not her counsel, as she was negligent in conducting her case. Section 17 of the Provincial Small Cause Courts Act, 1887 reads:-
"17. Application of the Code of Civil Procedure- (1) The procedure prescribed in the Code of Civil Procedure, 1908 (5 of 1908), shall save insofar 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 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 realized in manner provided by section [145] of the Code of Civil Procedure, 1908 (5 of 1908)."
8. I have heard counsels for parties and perused the record with their assistance as well as have gone through all the judgments referred to by them. So far as the judgments relied upon by the counsel for revisionist-defendant are concerned, none of them pertains to a matter arising out of proceedings under SCC Act. Therefore, the same do not squarely cover the matter in dispute. The only judgment with regard to SCC Act is of Kedarnath, (supra) relied upon by the counsel for respondent which lays down law with regard to object of the Act and interpretation of Section 17 of PSCC Act. Paragraph 6 to 8 of the judgment of Kedarnath (supra) read as follow:-
"6. The object behind establishing Small Cause Courts conferred with jurisdiction to try summarily such specified category of cases which need to be and are capable of being disposed of by adopting summary procedure of trial is to secure an expeditious disposal and to curtail the lengthy procedure of litigation. Excepting an order for compensatory costs in respect of false or vexatious claims or defences or an order imposing fine or directing the arrest or detention in the civil prison of any person (except where such arrest or detention is in execution of a decree), orders and decrees of courts of small causes are not appealable: they are only revisable by the High Court (or by District Court under Section 115 of CPC as amended in its application to State of U.P.). The jurisdiction to entertain and hear an application to set aside a decree passed ex-parte or for a review of judgment by courts of small causes is sought to be qualified and narrow down by imposing condition as to deposit or giving security for performance or compliance by enacting proviso to sub-section (1). Such a provision fits in the scheme of the PSCC Act. Although there is no authoritative pronouncement by this Court (none brought to our notice) interpreting the nature and scope of the proviso however, the learned counsel for the appellant brought to our notice a number of decisions delivered by the High Courts of Allahabad, Oudh, Madras, Orissa, Rajasthan and Lahore which have taken the view that the proviso is mandatory and non-compliance therewith would entail dismissal of the application because such non-compliance cannot be condoned or overlooked by the court. They are, to wit : Mohammad Ramzan Khan Vs. Khubi Khan AIR 1938 Lahore 18 (DB), Murari Lal Vs. Mohammad Yasin AIR 1939 Allahabad 46, Mt. Shikhani Vs. Bishambhar Nath AIR 1941 Oudh 103, Jagdamba Prasad & Ors. Vs. Ram Das Singh & Anr. AIR 1943 Allahabad 288, Roshan Lal Vs. Brij Lal Amba Lal Shah- AIR 1944 Oudh 104, Vembu Amal Vs. Esakkia Pillai AIR 1949 Madras 419, Khetra Dolai Vs. Mohan Bissoyi AIR 1961 Orissa 37, and Dhanna Vs. Arjun Lal AIR 1963 Rajasthan 240. As the present case arises from the State of Uttar Pradesh, the learned counsel for the appellant cited a series of decisions delivered by Allahabad High Court so as to show the view of the law being consistently taken there. These are : Krishan Kumar Vs. Hakim Mohd. 1978 ALJ 738, Sharif Vs. Suresh Chand & Ors. 1979 AWC 256, Roop Basant Vs. Durga Prasad & Anr. 1983 1 ARC 565, Mohd. Islam Vs. Faquir Mohammad 1985 1 ARC 54, Krishan Chandra Seth Vs. Dr. K.P. Agarwal & Anr. - 1988 1 ARC 310, Mamta Sharma Vs. Hari Shankar Srivastava & Ors.- 1988 1 ARC 341, Mohd. Yasin Vs. Jai Prakash 1988 2 ARC 575, Purshottam Vs. Special Additional Sessions Judge, Mathura & Ors. 1991 2 ARC 129, Ram Chandra (deceased L.Rs.) & Ors. Vs. IXth Additional District Judge, Varanasi & Ors.- AIR 1991 Allahabad 223, Sagir Khan Vs. The District Judge, Farrukhabad & Ors. - 1996 27 ALR 540, Mohammad Nasem Vs. Third Additional District Judge, Faizabad & Ors. AIR 1998 Allahabad 125, and Beena Khare Vs. VIIIth Additional District Judge, Allahabad & Anr. 2000 2 ARC 616.
7. The learned counsel for the respondent brought to our notice Surendra Nath Mittal Vs. Dayanand Swarup and Anr. AIR 1987 Allahabad 132, Chigurupalli Suryanarayana Vs. The Amadalavalasa Co-operative Agricultural Industrial Society Ltd. AIR 1975 A.P. 196 and Tarachand Hirachand Porwal Vs. Durappa Tavanappa Patravali AIR 1943 Bombay 237. All the three decisions are single Bench decisions. Suffice it to observe that the first two decisions are more or less ad hoc decisions which do not notice other decisions and the general trend of judicial opinion. The view propounded therein does not appeal to us. The Bombay decision does not lay down any general proposition of law and proceeds on its own facts.
8. A bare reading of the provision shows that the legislature 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 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 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. (Emphasis added)
9. Thus, while interpreting Section 17 of the SCC Act, Supreme Court has specifically held that the deposit is required to be made at any time up to filing of an application to recall the final judgment. In the present case such application is filed on 07.08.2015. Thus, the amount in compliance of Section 17 was required to be deposited by 07.08.2015. Admittedly, by the said date, only Rs.30,000/- were deposited. The remaining amount of Rs.1,50,000/- was deposited on 04.05.2016, much later in time. There was no application filed for giving any security at any time whatsoever.
10. So far as there being any confusion with regard to ex-parte judgment dated 06.05.2015, the Court by the said ex-parte judgment had granted 'damages' against the defendant. The term 'damages' in such circumstances would include all damages as prayed for by the plaintiff. The relief clause of the plaint is every clear with regard to damages sought by the plaintiff. Therefore, I do not find any force in the submission of counsel for revisionist-defendant that there was a confusion with regard to grant of damages by the Court below. Hence, the said submission is rejected. Since there was insufficiency in compliance of Section 17, thus, the application under Order 9 Rule 13 was not maintainable. The Court below has also considered the merits of the recall application also. Though once it is found that Section 17 is not complied with, Order 9 Rule 13 CPC application need not be looked into, however, I have also considered the said findings. I also find that the revisionist-defendant failed in its duty to properly conduct the case. The defendant appeared before the Court on 16.03.2012. The suit was directed to proceed ex-parte on 03.05.2013 and it was ultimately decreed ex-parte on 06.05.2015. This Court fails to understand as to how the defendant in suit would not contact her counsel for more than two years with regard to progress made in the case and would not come to know that the case is proceeding ex-parte. The Court below, in the given facts, has rightly relied upon the judgment in case of Ramdas Vs. Ram Vriksh Pal; reported in AIR 1963 Punjab 206.
11. In view of aforesaid, there is no force in the present revision and the same is dismissed.
Order Date :-14.01.2020 Arti/-