# Dr. Gorakhnath v. Judge, Small Causes Court, Gorakhpur & Ors

- **Citation:** (2015) 2 ILRA 735
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-04-08
- **Case number:** C.M.W.P. No. 34386 of 2011
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-gorakhnath-v-judge-small-causes-court-gorakhpur-ors-43297
- **Pages:** 4

## Headnote

Small Causes Court Act 1887-Section 17whether
provisions
of
Section
17
requiring the tenant to deposit entire
decreetal
amounts
mandatory
or
directory ?-held-mandatory-no court can
ignore the said requirement.
Held: Para-12
The
Division
Bench
considered
the
judgment rendered in Kedarnath (supra)
and held that the provisions of Section 17 of
the Act is mandatory and non compliance
thereof would entail dismissal of the
application,
non-compliance
cannot
be
condoned or overlooked by the Court. There
is no provision in the statute that would
provide either for extension of time or to
condone the default in depositing the rent
within the stipulated period, the Court does
not have the power to do so.
Case Law discussed:
AIR 2002 SC 5825:2002 (1) ARC 186; 2005 (1)
ARC 253; 2002 (1) ARC 440; 2006(4) Supp.
ARC 571; 2010 (1) ARC 432; 2012 ACJ 1738

## Text

2 All] Dr. Gorakhnath Vs. Judge, Small Causes Court, Gorakhpur & Ors.
735
service without interruption followed by
confirmation shall count as qualifying
service. Thus, it is wholly immaterial that the
service of the petitioner was regularised on
1.2.2001, as he was continuously working
since the date of initial appointment. Though
earlier his working was against a temporary
establishment, as there was no sanctioned
post but after temporary post was sanctioned
and later on converted into permanent post,
the service so rendered, fully qualifies for
being counted for purpose of payment of
pension and retiral benefits.
14. For the aforesaid reasons, the
Court finds that the petitioners had
rendered qualifying pensionary service
with effect from the date of his promotion
in the year 1988 and which shall be
treated as service qualifying for pension.
15. In the aforesaid facts and
circumstances the impugned order dated
25.11.1990 (Annexure No.4 to the writ
petition) and the order dated 16.11.2012
(Anneuxre RA No.2 to the rejoinder
affidavit), cannot be sustained to the
effect that the petitioners are not eligible
for pensionary benefits as they do not
have qualifying service of ten years and
are quashed.
16. The writ petition is allowed. The
respondents are directed to finalise the
petitioners' pension treating them to be
promoted on the post of Assistant
Development Officer (Co-operative) on
regular basis w.e.f. 20.12.2001 under the
Regularization
Rules
of
1988
and
quantify the retiral benefits payable to
them and to pay the same to them within
three months from the date of production
of certified copy of this order before the
respondents.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.04.2015
BEFORE
THE HON'BLE SUNEET KUMAR, J.
C.M.W.P. No. 34386 of 2011
Dr. Gorakhnath
...Petitioner
Versus
Judge, Small Causes Court, Gorakhpur &
Ors.
...Respondents
Counsel for the Petitioner:
Sri K.M. Misra, Sri H.R. Mishra, Sri
Kamlesh Kumar Mishra, Sri Narayan Das
Counsel for the Respondents:
Sri A.K. Pandey, Sri Ashutosh Kumar
Small Causes Court Act 1887-Section 17whether
provisions
of
Section
17
requiring the tenant to deposit entire
decreetal
amounts
mandatory
or
directory ?-held-mandatory-no court can
ignore the said requirement.
Held: Para-12
The
Division
Bench
considered
the
judgment rendered in Kedarnath (supra)
and held that the provisions of Section 17 of
the Act is mandatory and non compliance
thereof would entail dismissal of the
application,
non-compliance
cannot
be
condoned or overlooked by the Court. There
is no provision in the statute that would
provide either for extension of time or to
condone the default in depositing the rent
within the stipulated period, the Court does
not have the power to do so.
Case Law discussed:
AIR 2002 SC 5825:2002 (1) ARC 186; 2005 (1)
ARC 253; 2002 (1) ARC 440; 2006(4) Supp.
ARC 571; 2010 (1) ARC 432; 2012 ACJ 1738
(Delivered by Hon'ble Suneet Kumar, J.)
1. Supplementary affidavit filed
today on behalf of the petitioner, is taken
736
 INDIAN LAW REPORTS ALLAHABAD SERIES
on record. Learned counsel appearing for
the respondents states that reply to the
said affidavit is not required.
2. Heard Sri H.R. Mishra, Senior
Advocate assisted by Sri Kamlesh Kumar
Mishra, learned counsel appearing for the
petitioner and Sri A.K. Pandey, learned
counsel for the respondents.
3. The respondent/landlord IInd set
filed a suit for eviction and arrears of rent
before Small Cause Court at Gorakhpur
being Suit No. 106 of 1993. The suit was
decreed against the petitioner/tenant on 23
December 1998. The petitioner filed a
restoration application under Order 9 Rule
13 of the Code of Civil Procedure on 23
November 2002 for setting aside the ex
parte judgment and order. The petitioner
admittedly did not deposit the entire
decretal amount as required in terms of
the proviso to Section 17 of the Small
Causes
Court
Act,
18871.
On
8
September
2006,
the
restoration
application was rejected by the Court on
the ground that mandatory provision of
proviso to Section 17 of the Act 1887 was
not complied. On 4 January 2011, the
petitioner moved another application (27Ga) before the Small Causes Court, for
recalling the earlier order dated 8
September 2006 and praying that the
application under Order 9 Rule 13 of the
C.P.C. be decided by permitting the
petitioner to deposit the decretal amount.
The Court vide order dated 16 April 2011
rejected the application being barred by
res judicata.
4. The petitioner is assailing the
order dated 16 April 2011 passed by the
Small Causes Court, Gorakhpur rejecting
the application (27-Ga) of the petitioner,
and a direction has been sought that the
restoration application (4-Ga) dated 23
November 2002 be decided on merit.
5. It is made clear that the order
dated 8 September 2006 rejecting the
restoration application is not being
assailed.
6. It is not disputed by learned
counsel for the petitioner that the
provisions contained in proviso to Section
17 of the Act 1887 was not complied
with. The learned counsel would submit
that the language of the proviso is
directory in nature and not mandatory,
therefore, in the interest of justice, the
judgment and decree should be recalled
and the suit be heard on merits.
7. In rebuttal, Sri A.K. Pandey, learned
counsel appearing for the respondents IInd
set would submit that proviso to Section 17
of the Act, 1887 is a mandatory provision
and not directory, it is not in dispute that the
petitioner had not deposited the entire
decretal amount, there is no illegality or
infirmity in the impugned order.
8. The court below vide order dated
8 September 2006 noted that the judgment
and decree was passed on 23 December
1998 whereas the application under Order
9 Rule 13 of the C.P.C. was filed
supported by an affidavit dated 23
November 2002. It was admitted by the
petitioner in the application that due to
wrong legal advise, mandatory provisions
of Section 17 of the Act 1887 was not
complied
with,
accordingly,
the
application was rejected. The petitioner
on 4 January 2011 moved another
application to recall the above mentioned
order stating that due to inadequate legal
advice, he was not aware of the provisions
contained in Section 17 of the Act, 1887.
2 All] Dr. Gorakhnath Vs. Judge, Small Causes Court, Gorakhpur & Ors.
737
It was further stated that the petitioner
realised the mistake, consequently, filed
an application to recall the order dated 8
September 2006 which has been rejected
by
the
impugned
order
being
an
application for the same cause of action.
The record would, thus, reflect that the
requirement of depositing the decretal
amount in terms of Section 17 of the Act
1887 was not complied by the petitioner.
9. The Apex Court in Kedarnath vs.
Mohan Lal Kesarwari and others2, held as
follows:
"A bare reading of Section 17(1)
Proviso shows 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. An
application seeking to set aside an exparte decree passed by a Court of Small
Causes or for a review of its judgment
was to 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
dispensation may be filed. 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."
10. This Court in the case of Khilla
Devi @ Manju Singh v. Vishwa Mohini3,
Jai Prakash v. Gulab Singh Rathor4,
Dinesh Kumar Dubey v. Ganga Shankar
Tiwari5 and in Raj Kumar and another vs.
Neeraj Kumar Singhal,6 held that the
compliance of Section 17 of the Act is
mandatory for the maintainability of an
application under Order IX, Rule 13
C.P.C.
11. A Division Bench in Raj Kumar
Makhija and others vs. M/s S.K.S. And
Company and others7, on a reference
made regarding the scope of Section 17 of
the Act held that a bonafide mistake on
the part of the applicant in not depositing
the entire decretal amount cannot be
condoned under Section 17 of the Act, the
application would be liable to be rejected.
The reference before the Court was as
follows:
"Whether the proviso to Section 17 of
the Provincial Small Causes Courts Act
completely bars any rectification or removal
of a bona fide error after the expiry of the
period
of
limitation
when
substantial
compliance by way of deposit of the decretal
amount and furnishing security has been made
within the period of limitation particularly
when Section 5 of the Limitation Act, 1963
has been made applicable to Order IX Rule 13
of the Code of Civil Procedure?"
12. The Division Bench considered
the judgment rendered in Kedarnath
(supra) and held that the provisions of
Section 17 of the Act is mandatory and
non compliance thereof would entail
dismissal
of
the
application,
non-
738
 INDIAN LAW REPORTS ALLAHABAD SERIES
compliance cannot be condoned or
overlooked by the Court. There is no
provision in the statute that would provide
either for extension of time or to condone
the default in depositing the rent within
the stipulated period, the Court does not
have the power to do so.
13. The Constitution Bench of the
Supreme Court in Radhey Shyam and
another vs. Chhabi Nath and others,8 held
that writ petition under Article 226 of the
Constitution is not maintainable against a
judicial order of a court .The Court
approved the ratio laid down in Shalini
Shetty and another vs. Rajendra Shankar
Patil9, that no petition can be entertained
in writ jurisdiction being a dispute
between landlord and tenant i.e. amongst
private parties.
14. For the reasons and law stated
herein above, I do not find any illegality
or irregularity in the impugned order
dated 16 April 2011 passed by first
respondent, Judge Small Causes Court,
Gorakhpur.
15. The writ petition is dismissed,
both on merit and maintainability.
16. Interim order, if any, stands
vacated.
17. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.04.2015
BEFORE
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.
C.M.W.P. No. 36019 of 2008
Madhusudan Agarwal
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Anil Kumar Bajpai
Counsel for the Respondents:
C.S.C.
Payment of Gratuity Act 1972-Section
4(6)-deductions from gratuity-without
full fledged disciplinary enquiry-merely
on basis of show cause notice-held none
of contingencies of Section 4(6) of Actfulfilled-principle
of
Natural
Justiceviolated-deduction order quashed-with
direction to refund all recovered amount
with 9% interest.
Held: Para-14
It is admitted case that in the present
matter no departmental enquiry has
taken place. Only on the basis of show
cause the department had proceeded
into the matter and took final decision
and held that the petitioner was liable to
pay Rs.5,86,562/-, which is against the
principle of natural justice. While in
service
neither
preliminary
nor
full
fledged departmental enquiry has been
made in the matter. No adverse material
has been brought on record against the
petitioner in his career.
Case Law discussed:
{2015 (2) ADJ 673 (DB)(LB)}; 2015 (3) ADJ
305 (DB); 2009 (2) SLJ 105; (2007) (2) BLJR
2847); Letters Patent Appeal No. 113 of 2012.
(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.)
1. Heard Shri Anil Kumar Bajpay,
learned counsel for the petitioner and Shri
Pankaj Rai, learned Addl. Chief Standing
Counsel for the respondents.
2. By means of the present writ
petition, the petitioner has prayed for
following
reliefs:-