# Air Plaza Retail Holding Pvt. Ltd., Chennai Revisionist v. Nitin Malhotra & Anr

- **Citation:** (2022) 7 ILRA 932
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-30
- **Case number:** S.C.C. Revision No. 45 of 2022
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/air-plaza-retail-holding-pvt-ltd-chennai-revisionist-v-nitin-malhotra-anr-48678
- **Pages:** 20

## Headnote

Sri
Navin
Sinha,
Sri
Ashish
Kumar
Srivastava

A. Civil Law -Civil Procedure Code, 1908 -
Order IX Rule 13 r/w Section 17 -
Provincial Small Cause Courts Act, 1887 --
- while filing application under Order IX Rule 13
CPC, 1908, it is mandatory to comply Section 17
of Act, 1887 first and failure of that, no
application can be entertained under Order IX
Rule 13 CPC, 1908

Held: Revision dismissed. (E-12)

List of Cases relied upon:-

Subodh Kumar Vs Shamim Ahmad passed in
Civil Appeal Nos. 802-803 of 2021 (arising out of
SLP (C) Nos. 18118-18119 of 2019 decided on
03.03.2021.

## Text

_Characters 0–39,937 of 69,936. This is a partial read: ask again with offset=39937 for what follows._

932 INDIAN LAW REPORTS ALLAHABAD SERIES
discussed here-in-above. Thus, it can safely
be held that prosecution was not able to prove
its case beyond reasonable doubt. It is
pertinent to mention here that prosecution has
also not produced the FSL report to establish
the place of occurrence. If the findings of the
trial court recorded in the impugned
judgment
and order
are
analyzed
in
consonance with the facts and evidence
adduced by the parties in the present matter in
light of submissions advanced by the learned
counsel for the parties, we are of the view
that the view taken by the trial court in the
impugned judgment and order is a possible
view.

21. Considering the entire aspects of the
matter, we are of the view that impugned
judgment and order passed by the trial court
is well thought and well discussed and trial
court has rightly held that prosecution has not
succeeded to prove guilt of accused
respondent beyond reasonable doubt. The
accused respondent is found not guilty for the
offence punishable under Sections 302/34,
302 IPC. As such, impugned judgment and
order passed by trial court is liable to be
upheld and government appeal having no
force is liable to be dismissed.

22. Accordingly, present Government
Appeal is dismissed and the impugned
judgment and order passed by the trial court
is affirmed.
----------
(2022)07ILR A932
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2022

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

S.C.C. Revision No. 45 of 2022
Air Plaza Retail Holding Pvt. Ltd., Chennai
 ...Revisionist
Versus
Nitin Malhotra & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Sushil Shukla, Sri Ishir Sripat, Sri Rahul
Sripat (Senior Adv.)

Counsel for the Opposite Parties:
Sri
Navin
Sinha,
Sri
Ashish
Kumar
Srivastava

A. Civil Law -Civil Procedure Code, 1908 -
Order IX Rule 13 r/w Section 17 -
Provincial Small Cause Courts Act, 1887 --
- while filing application under Order IX Rule 13
CPC, 1908, it is mandatory to comply Section 17
of Act, 1887 first and failure of that, no
application can be entertained under Order IX
Rule 13 CPC, 1908

Held: Revision dismissed. (E-12)

List of Cases relied upon:-

Subodh Kumar Vs Shamim Ahmad passed in
Civil Appeal Nos. 802-803 of 2021 (arising out of
SLP (C) Nos. 18118-18119 of 2019 decided on
03.03.2021.
(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Rahul Sripat, learned
senior counsel assisted by Sri Sushil Shukla
along with Sri Ishir Sripat, learned counsel
for the revisionist-defendant and Sri Navin
Sinha, learned senior counsel assisted by
Sri Ashish Kumar Srivastava, learned
counsel for the respondents-plaintiffs.

2. Present revision has been filed
challenging the order dated 28.02.2022
passed by Additional District Judge, Court
No. 10, Varanasi in Misc. Case No. 389 of
2021 (Air Plaza Holding Pvt. Ltd. Vs. Nitin
Malhotra And Another).
7 All. Air Plaza Retail Holding Pvt. Ltd., Chennai Vs. Nitin Malhotra & Anr.
933

3. Learned counsel for the revisionistdefendant
submitted
that
revisionistdefendant is a company incorporated under
the Companies Act, 1956 engaged in
business of operation of retail outlets of
apparel, food, products, FMCG products and
other goods throughout India and is currently
operating around 500 retail outlet stores in the
country. The agreement to lease dated
30.08.2019 was signed by revisionistdefendant
and
plaintiffs-
respondents-
plaintiffs for ten years, which provides 60
days of rent free period from the date of
possession. The revisionist-defendant entered
into possession on 5.10.2019 and was not
liable to pay rent till December, 2019.
Without waiting for the said free period, he
started paying rent from 10.11.2019 and there
is no default on his part. Suddenly, he has
received notice dated 31.01.2020 terminating
the tenancy against the terms and condition of
agreement to lease upon which revisionistdefendant has submitted detail reply dated
17.2.2020. Thereafter, plaintiffs-respondents-
plaintiffs have filed SCC Suit No. 11 of 2020
before Judge, Small Causes Court/ Additional
District and Sessions Judge, Court No. 10,
Varanasi. Notices were issued, but the
revisionist-defendant could not appear and
ultimately, the said suit was allowed by ex
parte judgement dated 12.03.2021 accepting
the verbatim claim made in plaint. Further,
direction was issued to vacate the house in
question failing which liberty is given to
plaintiffs- respondents to move execution
application for eviction and recovery of rent.
Judgement was given on 12.03.2021 and
decree was prepared on 24.3.2021.

4. Revisionist-defendant has filed
application under Order IX Rule 13 Civil
Procedure Code, 1908 (in short CPC, 1908)
read with Section 17 of The Provincial Small
Cause Courts Act, 1887 (hereinafter referred
to as "Act, 1887") dated 26.3.2021 to set
aside ex parte decree. He next submitted that
application under Order IX Rule 13 CPC,
1908 has been filed prior to preparation of
decree, therefore, in paragraph 14 of the
application, it is mentioned that no direction
for paying any amount is mentioned in the
judgement/ decree due to which he has not
deposited any amount in compliance of
Section 17 of Act, 1887. He next submitted
that after going through decree, he has moved
application dated 27.9.2021 for compliance
of Section 17 of Act, 1887.

5. Learned counsel for the revisionistdefendant has assailed the impugned order
basically on three grounds. First ground is
taken about limitation and submitted that
Apex Court has taken suo motu cognizance
vide order dated 23.09.2021 in Misc.
Application No. 665 of 2021 alongwith
SMW (C) No. 3 of 2020 in which Apex
Court has excluded the period from
15.03.2020 till 02.10.2021 for any suit,
appeal, application or proceeding, therefore,
his application dated 27.9.2021 may be
treated filed within time. He may be given the
benefit of judgement of Apex Court and be
permitted to comply the Section 17 of Act,
1887 by depositing the decretal amount. For
ready reference, relevant paragraph of order
of Apex Court is quoted below;

"Therefore, we dispose of the M.A. No.
665 of 2021 with the following directions:-
I. In computing the period of limitation for
any suit, appeal, application or proceeding,
the period from 15.03.2020 till 02.10.2021
shall stand excluded. Consequently, the
balance period of limitation remaining as
on 15.03.2021, if any, shall become
available with effect from 03.10.2021."

6. Second ground is that at the time of
filing of application under Order IX Rule
13 CPC, 1908 more than decretal amount
has already been paid to plaintiffs-
respondents, therefore, there is no need to
934 INDIAN LAW REPORTS ALLAHABAD SERIES
deposit any additional decretal amount and
further, he is regularly paying the rent to
plaintiffs-
respondents,
which
is
Rs.
7,69,928/- per month till date. Therefore, it
was required on the part of Court below to
adjust this amount in decretal amount.

7. Third ground is that even in case of
non compliance of Section 17 of Act, 1887,
while filing application under Order IX
Rule 13 CPC, 1908 Court has discretion to
condone
the
delay
and
permit
the
revisionist-defendant to deposit the decretal
amount as required under Section 17 of
Act, 1887. In support of his contention, he
has placed reliance upon the judgement of
this Court in the matter of Waqf Alal Avlad
and Ors. Vs. IInd District Judge, Jaunpur
and others; 1992 (1) ARC 86 and
submitted that in the similar matter, to
make good the deficiency in depositing the
amount, Court below has granted time,
which was challenged before the Court and
Court has held that there is no illegality in
the order of Court below.

8. He next submitted that provisions
of Section 17 of Act, 1887 is being only
procedural in nature has to be interpreted in
such a way as to advance justice and to
facilitate to meet its ends. He next relied
upon the judgement of this Court in the
matter
of
Suresh
Chand
Vs.
VII
Additional District Judge, Muzaffarnagar
and Ors; 1992 AWC 40 All and submitted
that in that matter, Court is of the view that
it was not necessary that application under
Section 17 of Act, 1887 may be filed first
to be followed by the application under
Order IX Rule 13 CPC, 1908.

9. He further placed reliance upon the
judgement of this Court in the matter of
Masih Das and Ors. Vs. Court of
Additional District Judge 13th and Ors.;
1992 (19) ALR 529 where the Court has
permitted to make the deficiency good by
permitting the defendant to deposit the
amount so required under Section 17 of
Act, 1887 after filing application under
Order IX Rule 13 CPC, 1908.

10. Thereafter, he placed reliance
upon the judgement of this Court in the
matter of Quazi Neemat Ullah Vs. 6th
Additional District Judge, Gorakhpur and
Ors.; AIR 1993 All 126 in which Court is
of the view that if Court finds security
insufficient, may give further time to
defendant to make good the deficiency.

11 Further, he placed reliance upon
the judgement of this Court in the matter of
Prem Chandra Mishra Vs. Iind Additional
District Judge and Ors.; 2008(9) ADJ 13.

12. He submitted that in this matter,
revisionist-defendant
has
already
paid
arrears of rent, cost of suit and interest of
JSCC Suit much before passing of ex parte
decree and same may be taken into
consideration
while
entertaining
application. Court has held that it is
required on the part of Court below to
consider the said amount, if any, against the
decretal amount. Lastly, he submitted that
purpose of legislation is to provide justice
and application under Order IX Rule 13
CPC, 1908 may not be rejected merely on
technical ground ignoring this fact that
revisionist-defendant has come before this
Court with clean hand and also submitted
application dated 27.9.2021 to make good
the deficiency by depositing the decretal
amount, therefore, order impugned is bad
and liable to be set aside.

13.

Learned
counsel
for
the
respondents-plaintiffs
has
vehemently
opposed the submissions raised by learned
counsel for the revisionist-defendant and
submitted that so far as first judgement
relied upon by the revisionist-defendant
about limitation is concerned, same is
7 All. Air Plaza Retail Holding Pvt. Ltd., Chennai Vs. Nitin Malhotra & Anr.
935
having no relevance in the present case in
light of Section 17 of Act, 1887. The same
cannot be bifurcated into two parts i.e. first
file application under Order IX Rule 13
CPC, 1908 and thereafter, deposit the
money under Section 17 of Act, 1887. In
case, there would have been two parts and
second has not been complied within the
time provided in Section 17 of Act, 1887,
this judgement may have its effect, but in
present case, it is required on the part of
revisionist-defendant to first deposit the
decretal amount as required under Section
17 of Act, 1887 and thereafter, file
application under Order IX Rule 13 CPC,
1908. Therefore, this judgement has no
relevance in the present case.

14. He next submitted that in the
present case, there is no dispute on the
point
that
ex
parte
judgement
was
pronounced on 12.3.2021, decree was
prepared on 24.3.2021 having the detail of
decretal amount, application under Order
IX Rule 13 CPC is dated 26.03.2021 i.e.
after preparation of decree. Therefore, there
is no occasion for the revisionist-defendant
to file application under Order IX Rule 13
CPC, 1908 alongwith averment that there is
no direction to pay the amount. He has not
deposited any amount for compliance of
Section 17 of Act, 1887 which is very well
mentioned in decree dated 24.3.2021. So
far as non mentioning of decretal amount in
judgement dated 12.3.2021 is concerned, it
is undisputed that no written submission
was filed, therefore, Court below allowed
the suit in terms of pleadings made in plaint
treating correct meaning thereby, whatever
is claimed by the plaintiffs- respondents is
awarded
and
amount
has
not
been
mentioned.

15. So far as contention of revisionistdefendant that sufficient amount, which is
more than decretal amount already given to
plaintiffs-respondents is concerned, it is
necessary to point out here that it has never
been pointed out before the Court below as
to whether defendant has deposited any
amount or not as no written submission was
filed. Therefore, there is no occasion for
Court to see as to whether any alleged
amount has been deposited or not except to
treat the facts mentioned in plaint is correct
in absence of written submission. This can
only be seen by the Court once the
application under Order IX Rule 13 CPC,
1908 is allowed and time is granted to file
written submission. Therefore, claim of
revisionist-defendant about any amount
already deposited cannot be considered for
the purpose of meeting the requirement of
Section 17 of Act, 1887. It is mandatory
requirement on the part of revisionistdefendant to deposit the same. Not only
this, revisionist-defendant in application
dated 27.9.2021 has admitted this fact that
inadvertently, he could not comply Section
17 of Act, 1887 and further time may be
granted to comply Section 17 of Act, 1887.
He next submitted that this issue came
before Apex Court as well as this Court on
many occasions and Court is of the firm
view that no such additional time can be
granted to comply Section 17 of Act, 1887
by depositing the money at later stage.

16. In support of his contention, he has
placed reliance upon the judgements of this
Court in the matter of Roshan Lal and
others Vs. Rishi Pal Singh and others;
2013 (2) ARC 74, Gorakhnath (Dr.) Vs.
Judge, Small Causes Court and others;
2015 (2) ARC 527 and Mohd. Israil and
another Vs. Nausaba A Sabari and 5
others; 2016 (3) ARC 448.

17. Further, he placed reliance upon
the latest judgement of Apex Court in the
matter of Subodh Kumar Vs. Shamim
Ahmad passed in Civil Appeal Nos. 802-
936 INDIAN LAW REPORTS ALLAHABAD SERIES
803 of 2021 (arising out of SLP (C) Nos.
18118-18119
of
2019
decided
on
03.03.2021. In that case, Apex Court after
hearing learned counsel for the parties, has
framed the very same issue and decided
that before filing application under Order
IX Rule 13 CPC, 1908, provisions of
Section 17 of Act, 1887 has to be complied
with.

18. Lastly, he submitted that under the
provisions of Section 17 of Act, 1887, law
laid down by this Court as well as Apex
Court in the matter of Subodh Kumar
(supra), there is no illegality in the
impugned order and revision is liable to be
dismissed with costs.

19. I have considered the rival
submissions of learned counsel for the
parties and perused the record, provisions
of law as well as judgements relied upon
the parties.

20. Issue before this Court is as to
whether after filing of application under
Order IX Rule 13 CPC, 1908 to set aside ex
parte decree, compliance of Section 17 of
Act, 1887 can be done later on or not?

21. Before coming to issue, it is
useful to reproduce the provisions of
Section 17 of Act, 1887 as well as Order IX
Rule 13 CPC, 1908;

 Section 17 of Act, 1887
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 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)."

 Order IX Rule 13 CPC, 1908
Setting aside decree ex parte against
defendant. - In any case in which a decree
is passed ex parte against a defendant, he
may apply to the Court by which the decree
was passed for an order to set it aside; and
if he satisfies the Court that the summons
was not duly served, or that there was
sufficient cause for his failure to appear
when the suit was called on for hearing, the
Court shall make an order setting aside the
decree as against him upon such terms as
to costs, payment into Court or otherwise
as it thinks fit, and shall appoint a day for
proceeding with the suit; Provided that
where the decree is of such a nature that it
cannot be set aside as against such
defendant only it may be set aside as
against all or any of the other defendants
also:
Provided also that no such decree shall be
set aside merely on the ground of
irregularity of service of summons, if the
Court is satisfied that the defendant knew,
or but for his willful conduct would have
known, of the date of hearing in sufficient
time it enable him to appear and answer
the plaintiff's claim
Explanation.-1. Where a summons has been
served under Order V, Rule 15, on an adult
male member having an interest adverse
7 All. Air Plaza Retail Holding Pvt. Ltd., Chennai Vs. Nitin Malhotra & Anr.
937
tothat of the defendant in the subject-matter
of the suit, it shall not be deemed to have
been duly served within the meaning of this
rule.
Explanation II.- Where there has been an
appeal against a decree passed ex parte
under this rule, and the appeal has been
disposed of on any ground other than the
ground that the appellant has withdrawn
the appeal, no application shall lie under
this rule for setting aside that ex parte
decree.

22. The legal provision is very much
clear. Section 17 of Act, 1887 clearly
provides to deposit the decretal amount in
Court or gives security for the performance
of
decree
or
compliance
with
the
judgement before filing application for
setting aside the decree. There is nothing in
section
which
permits
to
first
file
application and thereafter deposit the
decretal amount. Order IX Rule 13 CPC,
1908 shall govern with the provisions of
Section 17 of Act, 1887.

23. Now under such proposition of
law referred and discussed hereinabove,
Court shall consider the argument raised by
the learned counsel for the parties and
judgments relied upon by them.

24. So far as first argument with
regard to benefit of limitation in light of
relaxation granted by the Apex Court is
concerned, it is not applicable in the
present matter for the reason that Section
17 of Act, 1887 and Order IX Rule 13 of
CPC, 1908 cannot be bifurcated in two
parts. There is no such provision to first file
application under Order IX Rule 13 of
CPC, 1908 and thereafter deposit the
decretal amount under Section 17 of Act,
1887. In case, there would have been
bifurcation
in
two
parts,
revisionistdefendant may claim benefit of limitation,
therefore, argument of limitation is having
no relevancy in the present case.

25. Further, learned counsel for the
revisionist-defendant placed reliance upon
the judgments of High Court in the matter
of Waqf Alal Avlad and Ors. (supra),
Suresh
Chand
(supra),
Masih
Das
(supra), Quazi Neemat Ullah (supra) and
Prem Chandra Mishra (supra) in which
Courts granted time to make the good
deficiency by permitting the defendant to
deposit the amount so required under
Section 17 of Act, 1887 after filing the
application under Order IX Rule 13 of
CPC, 1908.

26. Relevant paragraphs of the
aforesaid judgements are quoted below;

Waqf Alal Avlad (supra)

"The petitioners filed, in the Court of
Civil Judge, Jaunpur, suit No. 68 of 1978
for ejectment of Smt. Safia Mariam,
respondent No. 3 and for recovery of
arrears of rent and damages for the use
and occupation of the accommodation in
dispute. The suit was decreed ex parte on
3rd May, 1985. Respondent No. 3 applied
for setting aside of the ex parte decree on
5th May, 1985. She also deposited a sum of
Rs.
1450
in
order
to
satisfy
the
requirements of Section 17 of Provincial
Small Cause Courts Act, 1887. The
petitioners objected to the restoration
applied for on the ground of alleged
noncompliance of Section 17 inasmuch as
the deposit made by respondent No. 3 fell
short by Rs. 2500. Considering the facts
and circumstances of the case, the trial
Court allowed respondent No. 3 a week's
further time to make the deficiency in the
deposit good vide its order dated 28th
August, 1985. This order of the trial Court
was challenged in Revision No. 260 of
1985 which was decided by the II
938 INDIAN LAW REPORTS ALLAHABAD SERIES
Additional District Judge, Jaunpur. The
learned District Judge affirmed the order
of the trial Court and dismissed the
revision by means of his judgment and
order dated 29th July, 1987. The two
orders of the trial Court and the revisional
Court are under challenge in the instant
writ petition under Article 226 of the
Constitution of India.
The Court has carefully scrutinised the
impugned judgment and orders and is
clearly of the opinion that respondent No. 3
has rightly allowed further time to make
good the deficiency in deposit. The interest
of justice required so. The Court is, further,
of the opinion that the impugned judgment
and orders stand to promote justice
between the parties and do not result in any
manifest injustice to the petitioners, which
is a condition precedent for exercise of
extraordinary jurisdiction under Article
226 of the Constitution of India.

For the foregoing reasons the Court
declines to interfere with the orders
impugned in the writ petition. The petition
is, therefore, dismissed summarily.''

Suresh Chand (supra)

"Section 17 of the Act being only
procedural in nature has to be interpreted
in such a way as to advance justice and to
facilitate to meet its ends. The provision is
to be liberally construed. The Court has to
see that substantial compliance has been
done. Reference may be made to a case
reported in Bhagwan Swaroop v. Mool
Chand.
The provisions of Section 17 of the Act are
only procedural. The Legislature intended
that when an ex parte decree is sought to
be set aside the judgment-debtor should
deposit the decretal amount either in cash
or to give security for performance of the
decree. It is only to protect the interest of
the decree-holder. If the contention of the
learned Counsel for the respondent is
accepted that would frustrate the object of
Section 17 of the Act itself. The use of the
word
"previous
application"
is
only
directory and not mandatory. The only duty
cast upon the Court is to ensure, that on the
date of allowing the application under
Order 9, Rule 13, C.P.C. the entire decretal
amount has been deposited or the security
has been furnished for the performance.
Thus I am of the view that it was not
necessary that the application under
Section 17 of the Act may be filed first to be
followed by the application under Order 9,
Rule 13, C.P.C."

Masih Das (supra)
"The Plaintiffs obtained an ex parte decree
against the Defendants on 30-3-87. The
Defendants claim that they came to know of
the said ex parte decree on 5-5-87 and
immediately on the next day i.e. on 6-5-87
they moved an application, supported by an
affidavit, wherein, the' Defendants stated
that they had no knowledge of the said suit,
as the Defendants were never served with
any summons and the said ex parte decree
has been obtained without service of any
summons on the Defendants. On 14-5-87.
the Defendants moved an application for
complying with the proviso of Section 17 of
the Provincial Small Causes Court Act
(hereinafter referred to as 'the Act'). In this
application, the Defendants stated that a
money-order has been sent of Rs. 975/-
towards rent of the house, which has been
received by the Plaintiffs during the course
of the suit. As such, the Defendants should
be permitted only to execute a personal
bond for compliance of proviso to Section
17 of the Act. Alongwith application, a
photostat copy of the original receipt of the
money-order for Rs. 975/-, showing receipt
of the aforesaid amount by the Plaintiffs on
7 All. Air Plaza Retail Holding Pvt. Ltd., Chennai Vs. Nitin Malhotra & Anr.
939
21-4-86, was filed. The trial court, vide its
order
dated
14-5-87,
permitted
the
Defendants to deposit half of the decretal
amount in cash and security for half of the
decretal amount by 10-7-87. However,
before the aforesaid date i.e. 10-7-87, the
Defendants moved an application on 26-587 that the Plaintiffs' suit has been decreed
ex parte on 30-3-87, wherein the Plaintiffs
had admitted the receipt of a sum of Rs.
975/- from the Defendants on account of
rent and mesne profits during the pendency
of the case but the said amount has not
been adjusted in preparing the ex parte
decree. As such, the ex parte decree, may
be amended suo-moto. In the aforesaid
background on 10-7-87, the Defendants
moved another application, saying that so
far as the rent is concerned, the Defendants
have paid the rent but the exact amount of
the decree is not being ascertained. The
original record may be summoned, so that
the Defendants may deposit the full
amount. On the said application, the court
directed the original file to be summoned,
fixing 23-7-87. On 23-7-87 the court
granted one week's time for complying with
the court's order dated 14-5-87. On 30-787 an application was moved on behalf of
the Defendants, seeking one month's time
for depositing the decretal amount on the
ground that the Defendant Masih Das had
fallen ill on the said date. The application
was allowed and 15 days' time was granted
to the Defendants for complying with the
court's order dated 14 5-87. On 4-8-87 the
Defendants deposited a sum of Rs. 590.25
paise in cash and furnished security for a
sum of Rs. 590.25 paise, which was duly
accepted by the trial court. The trial court
issued notice on Defendants' application
under Order 9 Rule 13 of Code of Civil
Procedure to the Plaintiffs and also stayed
further proceedings in execution case for
ejectment
of
the
Defendants.
The
Defendants claim that the notice was issued
to the Plaintiffs, after the trial court was
satisfied that proviso of Section 17 of the
Act has been complied with.
The
Plaintiffs
contested
the
said
application on the ground that the
Defendants' application, under Order 9
Rule 13 of Code of Civil Procedure is
barred by time. It was also contended that
the summons were duly served on the
Defendants and there is no justification for
setting aside the ex parte decree.
.....................................................................
.........................

The
Defendants'
counsel
has
made
following submissions : Firstly, that the
Defendants have sent money-order of Rs.
975/-to-wards rent which was admitted to
the Plaintiffs. The ex parte decree was
passed by the court, ignoring the aforesaid
admission As such, the amount should have
been
adjusted
before
judging
the
compliance of the requirement of the
proviso to Section 17 of the Act If the said
amount would have been adjusted in the
decretal amount, the defents duty com-plied
with the requirement of the proviso to
Section 17 of the Act within the time
allowed by the court.

Secondly, the court having itself permitted
the
Defendants
to
comply with
the
requirement of the proviso to Section 17 of
the Act and the Defendants having
complied with the said requirement within
time allowed by the court, the courts below
were not justified in taking a view that the
court had no jurisdiction to grant time for
compliance of proviso to Section 17 of the
Act It is a settled proposition of law that no
party should suffer for the mistake of the
court.
940 INDIAN LAW REPORTS ALLAHABAD SERIES
Thirdly in any case the decree was
corrected by the court as late as on 22-8-88
As such, the court should have examined
that the short fall, if any could have been
condoned on the Defendants' application
for condonation of delay given in the month
of May, 1988.

The
Plaintiffs'
counsel
has
mainly
contended that an application, under Order
9, Rule 13 of Code of Civil Procedure shall
be deemed to be filed only on the date the
judgment
debtor
complies
with
the
requirement of Section 17 of the Act. There
is no power with the court for extending
time for complying with the requirement of
proviso to Section 17 of The Act. The
counsel contended that the application for
condonation of delay was given as late as
on 13-5-88 and there was no justification
for this inordinate delay. The court below
rightly rejected the said application and
rightly held that there was no proper
application
moved
on
the
Part
of
Defendants under Order 9 Rule 13 of Code
of Civil Procedure read with proviso to
Section 17 of the Act within time.

The revisional court, while dismissing the
Defendants' revision held that even though
the trial court had no jurisdiction to extend
time for complying with the requirement of
proviso to Section 17 of the Act, still the
Defendants should not be penalised for the
mistake of the court and it may be held that
the Defendants were entitled to comply
with the requirement of proviso to Section
17 of the Act latest by 10-7-87 but the
Defendants failed to comply with the said
requirement even on 10-7-87 There was no
justification for the Defendants to have
sought further time on 10-7-87 for
complying with the requirement of proviso
to Section 17 of the Act. The and 30-7-87,
whereby time was advantage of the court's
order dated 23-7-87 and 30-7-87, whereby
time was further extended for complying
with the court's order dated 14-5-87. The
revisional court also held that there was no
justification for the Defendants to have not
complied with the court's order dated 14-587 by 10-7-87, as it was open to the
Defendants to have ascertained the exact
decretal amount by 10-7-07 and should
have complied with the requirement of the
proviso to Section 17 of the Act latest by
10-7-87.

.....................................................................
.........................................

From the above discussion, it is clear that
the revisional court has not approached the
problem from the correct angle. The
revisional court has not taken into account
the fact that there was no fault on the part
of the Defendants in complying with the
requirement of proviso to Section 17 of the
Act within the time allowed by the court:
The revisional court having itself held that
the Defendants should not be penalised for
the mistake of the court, there was no
justification for the revisional court to have
taken a view that after 10-7-87, the
Defendants could not have taken advantage
of the courts' order.

The revisional court also failed to take into
consideration that the Defendants were
claiming adjustment of Rs. 975/- towards
compliance of the requirement of proviso to
Section 17 of the Act right from the very
beginning. The said amount should have
been adjusted in the decree, is clear from
the fact that the said decree has been
amended by the court itself in exercise of
powers under Section 152 of Code of Civil
Procedure. It has been held by the trial
court itself that it was due to mistake of the
court that a wrong decree was prepared. If
7 All. Air Plaza Retail Holding Pvt. Ltd., Chennai Vs. Nitin Malhotra & Anr.
941
the correct decree would have been
prepared, the said amount would have been
adjusted in the decree and if the said
amount would have adjusted in the said
decree, still can it be held that the
Defendants failed to deposit the requisite
amount and failed to furnish security of the
requisite amount, as per directions of the
court even on 4-8-87. All these matters
require-re-consideration of the revisional
court. The judgment of the revisional court
apparently suffers from the errors pointed
out in this judgment. As such, the order of
the revisional court is liable to be set aside.
The matter may be remanded back to be
decided afresh in the light of the
observations made in the judgment."

Quazi Neemat Ullah (supra)

"The
expression
"on
previous
application made by him in this behalf
occurring in proviso to Section 17(1) of
the Act, does not, in my opinion,
necessarily
comprehend
that
an
application to give such security for the
performance of the decree or compliance
with the judgment as the court may direct
must be filed before an application for
setting aside an ex parte decree is filed.
All that the said expression comprehends
is that the order of the Court directing
defendant-judgment debtor to give such
security as it considers necessary, should
be passed on an application moved in this
behalf before the application for setting
aside ex parte decree is entertained.
The word 'entertained" in this connection
has the meaning assigned to it by the
Supreme
Court
in
M/s.
Laxmi
Engineering
Works
Ltd.
V.
Asstt.Commissioner (Judl) Sales Tax
Kanpur Range Kanpur, AIR 1966 SC 488
followed in Sri Shyam Kishore v. M.C.D.,
1992 (5) JT 335,
.....................................................................
.........................................
In view of the above discussion, I am of the
opinion that the surety bonds furnished by
the defendant petitioner on 16-11-1989 i.e.
within the time specified by the Court vide
order
dated
10-11-1989,
upon
its
acceptance by the court vide order
impugned, has to be taken as due or, in any
case, substantial compliance of the proviso
to sub-sec. (1) of S. 17 of the Act.
Therefore, the order passed by Judge Small
Cause Court was not liable to be set aside
on the ground that the surety bond was not
deposited on the date of filing of the
application for setting aside the ex parte
decree. Since other pre requisite conditions
for setting aside the ex parte decree within
the meaning of O.9 Rule 14, C.P.C. were
satisfied in the opinion of the trial court,
the order passed by the revisional court has
to be quashed.''

Prem Chandra Mishra (supra)

"The object behind proviso of Section
17(1) of Provincial Small Causes Courts
Act 1887 is that unscrupulous tenants
against whom rent is due, who do not
appear on the date fixed may not take
advantage of not paying rent and thereby
causing harassment of the landlord. The
purpose of adding this proviso to Section
17 is to protect the interest of landlord
from further harassment and to secure and
ensure payment of rent and to put tenant to
term to legally make said deposits. Idea
behind said provision is to strike a balance
between rival interests so as to be just to
law. In case of exparte decree tenant has
been given liberty to move application
under Order IX Rule 13 of Code of Civil
Procedure on the ground provided therein
but under proviso to Section 17 (1) of
Provincial Small Cause Courts Act 1887
942 INDIAN LAW REPORTS ALLAHABAD SERIES
condition has been imposed so that tenant
does not take undue advantage for nonappearance and in this background as
condition precedent is it has been made
obligatory on the part of the tenant to
deposit the amount which is due so that in
the event an application for setting aside
decree is dismissed the decree in question
may be satisfied from the amount deposited
or from the security furnished by the
judgment debtor.
Question arising in the present case is that
Revisional Court has recorded finding of
fact which has not at all been assailed
before this Court that entire amount which
is due from tenant under decree qua the
same deposit is already there even before
passing of decree and once entire amount
in question is there can even in this
contingency application under Section 17
(1) of Provincial Small Cause Courts Act
1887 can be dismissed for non-compliance
of provision of proviso. Amount in question
under Section 20(4) of U.P. Act No. 13 of
1972 is permitted to be deposited in any
suit for eviction on the ground mentioned in
Clause (a) of sub-Section (2) of Section 20
by the tenant on the first hearing of the suit
unconditionally and amount which is
already deposited under Sub-Section (1) of
Section 30 of U.P. Act No. XIII of 1972 is
liable to be deducted for enabling tenant to
save eviction. Sub-Section (6) of Section 20
clearly provide that any amount deposited
by the tenant under Sub-Section (4) or
under Rule 5 of Order VX of the First
Schedule to the Code of Civil Procedure,
1908 shall be paid to the landlord forthwith
on his application without prejudice to the
parties pleadings and subject to the
ultimate decision in the suits. Similarly
Sub-Section (4) of Section 30 provides that
on any deposit which are made under
Section 30 the amount in question which
has been deposited can be withdrawn on an
application made in this behalf and further
sub-Section (6) of Section 30 provides that
any deposit made, same shall be deemed
that the person depositing it has paid it on
the date of such deposit to the person in
whose favour it is deposited in the case
referred to in sub-section (1) or to the
landlord in the case referred to in subsection (2). Thus, deposits which are made
under Sub-Section (4) of Section 20 and
under Section 30 of U.P. Act No. 13 of
1972 and under Order XV Rule 5 C.P.C.
are in custody of the Court and said
amount in question can at any point of
time, be withdrawn by the landlord in
question, and are readily available to the
landlord.
.....................................................................
.........................................
In the present case admitted position is that
after ex pate decree has been passed
application to recall ex-parte decree was
made on 24.05.1993 and alongwith the
same application under the proviso to
Section 17(1) has not at all been moved.
Said application was admittedly moved
subsequent to the same on 25.02.1994 and
in the said application mention was made
by him that he has already deposited the
rent, cost of suit and interest of JSCC suit
much earlier before passing of exparte
decree. Said application which has been
moved on behalf of tenant was not stating
any thing new rather it was sought to be
stated by the tenant that in the present case
decretal amount is already with the court
as he has already paid arrears of rent, cost
of suit and interest of JSCC suit much
before passing of exparte decree and same
may be taken into consideration while
entertaining application. Distinction will
have to be drawn qua the cases wherein
entire amount as mentioned in the proviso
to Section 17 of Provincial Small Cause
7 All. Air Plaza Retail Holding Pvt. Ltd., Chennai Vs. Nitin Malhotra & Anr.
943
Courts Act 1887 already stands deposited
even before passing of exparte decree. In the
said event of entire amount in question being
prior deposited, information has to be
furnished before Judge Small Causes Court,
then said fact on verification can be treated
as sufficient compliance as provided under
the proviso to Section 17 (1) of Provincial
Small Cause Courts Act 1887, inasmuch as
nothing new has been sought to be done after
expiry of the period rather only information
has been furnished that said condition has
already been complied with and interest of
landlord is fully protected as per object and
the purpose of Section 17. Tenant cannot be
asked to make deposit for second time and
furnish security for the second time in the
backdrop that prior to passing of decree
entire amount due under decree or judgment
has already been deposited. Judge Small
Causes can make inquiry in the matter of this
fact on being apprised as to whether decretal
amount is there or not but where decree in
question has been passed and decretal
amount mentioned as above is not at all there
then law laid down by Hon'ble Apex Court in
Kedarnath's case (supra) has to be followed
in its word and spirit.