Allahabad High Court
Smt. Khilla Devi Alias Manju Singh vs Smt. Vishwa Mohini Misra on 17 December, 2004
Equivalent citations: 2005(1)ARC253, 2005(1)AWC843
Author: K.N. Ojha
Bench: K.N. Ojha
JUDGMENT K.N. Ojha, J.
1. Civil Revision No, 163 of 2004 is preferred against the order dated 18.10.2004 passed by Incharge District Judge, Etah in Misc. Case No. 9 of 2004 arising out of small causes suit (SCC Suit) No. 10 of 2002 and order dated 28.9.2004 passed by the District Judge. Etah in s.C.c. Suit No. 10 of 2002 Smt. Vishwa Mohini v. Smt. Khilla Devi alias Manju Singh.
2. Since both revisions are related to each other therefore they are being finally disposed of by a common order.
3. Heard Sri Sashi Nandan learned senior counsel for the revisionist assisted by Km. Pooja Agarwal, advocate and Sri Swapnil Kumar learned counsel for the respondents.
4. The fact of the case is that Smt. Vishwa Mohini filed suit for arrear of rent and ejectment bearing S.C.C. No. 10 of 2002, Smt. Vishwa Mohini v. Smt. Khilla Devi. Smt. Vishwa Mohini claimed herself to be the owner and landlady of the house in question and alleged to have purchased the house from one Naresh Chand Saxena and gave information to the tenant Smt. Khilla Devi who according to the landlady was tenant in the said premises on rent of Rs. 700 per month. The case of defendant Smt. Khilla Devi was that per month rent was Rs. 300 only which she started to deposit in Court under Section 30 Clause I of U.P. Act No. 13 of 1972 (U. P. Urban Building Regulation of Letting, Rent and Eviction Act). The plaintiff landlady served the defendant with a notice but the premises was not vacated after the expiry of the period. Hence the suit for ejectment, arrear of rent and mesne profit was filed.
5. Smt. Khilla Devi contested the suit by filing affidavit of the witness but did not appear to cross-examine the witness of the plaintiff landlady nor adduced her evidence in defence. Therefore the argument of the plaintiffs counsel was heard as the case proceeded ex parte. The suit for arrear of rent and ejectment was decreed ex parte on 28.9.2004 by the District Judge/Judge, Small Causes Court, Etah. Two months time was allowed to vacate the premises in suit-The ex parte decree was for arrear of rent of Rs. 22,942.50 p and for pendente lite and future mesne profit until actual eviction of the defendant. After the ex parte judgment dated 28.9.2004 was passed Civil Revision No. 366 of 2004, Smt. Khilla Devi v. Vishv Mohini, was preferred before this Court.
6. Before the ex parte decree was passed on 28.9.2004 the case was fixed on 12.7.2004 for hearing when the defendant did not appear therefore the argument of the plaintiff was heard and judgment was reserved. Before the ex parte judgment was delivered on 28.9.2004 the defendant moved an application on 15.9.2004, for setting aside ex parte order dated 12.7.2004. The application was rejected and subsequently ex parte judgment was delivered.
7. After the ex parte judgment was delivered on 28.9.2004 application was moved under Order IX, Rule 13, C.P.C. read with Section 151, C.P.C. and Section 34 of the Act No. 13 of 1972. On 29.9.2004, the respondent landlady raised objection that deposit or furnishing of security was mandatory under Section 17 of the Provincial Small Causes Court Act and no such application was moved by the defendant-tenant for furnishing security nor the condition of deposit of decretal amount under Section 17 of Provincial Small Causes Court Act (the Act) was complied with, therefore, the application was not maintainable. The application for permission to furnish security was moved on 4.10.2004. The application was rejected on the ground that neither deposit of decretal amount was made nor application for deposit of security was moved in Court for setting aside the ex parte decree. It was held that the provision of Section 17 of the Act was mandatory which was not complied with and therefore application moved under Order IX, Rule 13, C.P.C. was not maintainable. Reliance was placed on the pronouncement made by Hon'ble the Apex Court in Kedarnath v. Mohan Lal Kesarwari and Ors., 2002 (1) AWC 502 (SC) : 2002 (1) ARC 186 .
8. It has been submitted by learned counsel for the respondents that ex pane judgment was delivered in the case for the arrear of rent and ejectment on 28.9.2004. Application for setting aside the decree was moved on 29.9.2004 and when this application was moved argument was heard on the application on 18.10.2004 but before the argument was heard on the application moved under Order IX, Rule 13, C.P.C., application was moved by the defendant-tenant for permission to deposit the security under Section 17 of the Act on 4.10.2004. Thus, it is submitted by learned counsel for the respondents that on the date the application was moved for setting aside the decree the application was not moved for permission to furnish security. Therefore, even though on the date the case was fixed for argument on the application moved for setting aside the decree, application for permission for furnishing security was moved but it was not maintainable. In view of the law laid down in the above cited case, the respondents have cited Javed Alam v. Shamshuddin, 2004 (1) ARC 646, Mohd. Naseem v. III Addl. District Judge, Faizabad, AIR 1998 All 125, Sagir Khan v. District Judge, Farrukhabad, 1996 (2) AWC 826 : 1996 (1) ARC 414, Sheo Dutt v. X Additional District Judge, Aligarh, 2002 AWC 4052, Krishan Chandra Seth v. Dr. K.P. Agarwal, 1988 (1) ARC 445, in which it has been held by the High Court of Allahabad that compliance of Section 17 of Act 13 of 1972 is mandatory and if the security has not been furnished the application under Order IX, Rule 13, C.P.C. is not maintainable for setting aside ex parte decree passed in small causes court case.
9. In reply the revisionist has relied on Qazi Nemat Ullah v. VI Additional District Judge, Gorakhpur, 1993 (1) ARC 151, wherein it has been laid down by the High Court of Allahabad that while dealing with the application moved under Order IX, Rule 13, C.P.C. proviso to Section 17 of Small Causes Court Act should be considered from the point of view that it is procedural and remedial in nature and a liberal construction is to be done and strict interpretation should not be made that if there is delay in moving application for furnishing security, the application should not be rejected, provided the tenant has intention and bona fide conduct to comply with the provision of Section 17 of the Act. Learned counsel for the revisionist has relied on Khursheed v. Ist Additional District Judge, Moradabad and Ors., 1998 (2) ARC 363 and Suresh Chand v. VIIth Additional District Judge, Muzaffernagar and Ors., 1991 (2) ARC 545, wherein it has been laid down that Section 17 Clause (1) of Provincial Small Causes Court Act 1887, is not mandatory and it is only directory and therefore a liberal interpretation is to be made.
10. Thus, the law has been cited showing different views but the Hon'ble the Apex Court has finally settled the view by laying down law in Kedarnath's case (supra) wherein it has been held that the Legislature have chosen to couch the language of the proviso in a mandatory form and there is no reason to interpret, construe and hold the nature of the proviso as directory. It has been held by Hon'ble the Apex Court in this case that 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 a court of the amount due from the applicant under the decree or in pursuance of the judgment and the provision as to deposit can be dispensed with by the Court in its discretion subject to previous application by the applicant seeking direction of the Court for leave to furnish security and the nature thereof. It has also been held that proviso does not provide for the extent of time by which such application for dispensation may be filed. In the opinion of the Court it should be 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 for dispensation and it is then for the Court to make a prompt order. However, the delay on the part of the Court in passing an appropriate order cannot be held against the applicant-tenant. In view of this law laid down by Hon'ble the Apex Court in the cited Kedarnath's case, the circumstances in the cited case were considered and it was observed that the applicant-tenant did not move any application for dispensing with deposit and seeking leave of the Court for such security for the performance of decree as the Court may have directed. The application for setting aside the decree was therefore incompetent. The decree was put to execution, the Court Amin went to the spot delivered possession and certified the delivery. The decree holder obtained possession and thereafter the application was moved for setting aside ex parte decree.
11. Civil Revision No. 366 of 2004, Smt. Khilla Devi @ Manju Singh v. Smt. Vishwa Mohini is filed to set aside the ex parte judgment dated 28.9.2004. The ex parte judgment can be set aside when the application is moved alongwith receipt of deposit or application for furnishing security in this case. Receipt of deposit of Rs. 22,942.50 p and for pendente lite and for future mesne profit @ Rs. 700 per month was required. Later on when application under Order IX, Rule 7. C.P.C. was rejected the application was moved on 4.10.2004 and not on 28.9.2004, when application under Order IX, Rule 13 C.P.C. was moved. While in view of the law laid down by Hon'ble the Apex Court in Kedarnath v. Mohan Lal Kesarwari and Ors., cited above the application muss, be accompanied with the receipt of deposit of decretal amount, or application for permission to deposit security. In this case application was not moved for permission to deposit security but application was moved on 4.10.2004 for deposit of the amount of decree but the amount was not specified and application was moved for permission to deposit the decretal amount under proviso of Section 17 of Small Causes Court Act. When the decretal amount is clear the application under Order IX, Rule 13, C.P.C. was to be moved on 29.9.2004 alongwith the receipt of deposit of decretal amount. Thus, the mandatory condition was not complied with till the date of disposal of that application while the law requires that the latest date by which the receipt of deposit of decretal amount is to be deposited, is the date when the application is moved under Order IX, Rule 13, C.P.C. It is not disputed that receipt of deposit of decretal amount was not filed till disposal of the application under Order IX, Rule 13, C.P.C. by the Judge, Small Causes Court (District Judge) Etah. The Hon. Apex Court has held in Kedarnath's case as cited above in paragraph 9 :
"9. 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."
12. In view of the mandatory law no jurisdictional error, illegality or material irregularity has been committed by the learned Judge, Small Causes Court while passing impugned order dated 18.10.04.
13. The application which was rejected under Order IX, Rule 7, C.P.C. has been also rejected in view of the law laid down in Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993, in which it has been held by Hon. the Apex Court that if the entirety of the hearing of the suit has been completed and Court being competent to pronounce the judgment then and there, adjourns the suit merely for the purpose of pronouncing judgment under Order XX, Rule 1, C.P.C., there is clearly no adjournment of the hearing of the suit for there is nothing more to be heard in the suit. Therefore Order IX, Rule 7, C.P.C. could have no application and the matter would stand at the stage of Order IX, Rule 6, C.P.C. to be followed up by the passing of an ex parte decree making Rule 13, C.P.C. the only provision under Order IX, C.P.C. applicable and the Court had no jurisdiction to entertain the application purported to have been moved under Order IX, Rule 7, C.P.C. It was further held that the inherent power of the Court cannot override the express provisions of the law. If there are specific provision of the Court dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the power of the Court or the jurisdiction, that may be exercised in relation to a matter, the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Courts.
14. In this case application under Order IX, Rule 13, C.P.C. was moved on 29.9.2004, application for permission for the deposit of decretal amount was moved on 4.10.2004 and the case was taken up for hearing on 18.10.2004. If on 4.10.2004 the application would have been supported with the receipt of deposit of decretal amount it could be said that prior to the date of hearing on the application the provision was complied with within limitation and a liberal view should be taken and bona fide conduct of the revisionist could be considered. But when merely application was moved and deposit of decretal amount was not made there has been non-compliance of mandatory provision of Section 17 Clause (1) of Small Causes Court Act.
15. Therefore both these revisions do not yield any fruitful result and deserve to be dismissed.
16. Both the revisions are dismissed. Costs will be easy on the parties. Stay stands vacated. Revisionist is allowed thirty days time to comply with ex parte decree in default of which decree holder may move for execution of decree.