# Om Prakash & Anr. Revisionists v. Bn Public School & Ors

- **Citation:** (2024) 12 ILRA 768
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-10
- **Case number:** S.C.C. Revision No. 97 of 2024
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-anr-revisionists-v-bn-public-school-ors-54537
- **Pages:** 8

## Headnote

Law
-
Code
of
Civil
Procedure,1908-Order IX R 13 - Section
151-Petitioner
-tenant
of
the
landlord
respondent-subject to an eviction suit for
recovery of arrears of rent-the suit proceeded
ex parte against the Petitioner-petitioner
moved an application initially under Section
151 CPC registered as Misc. Case No. 1 of
2016 for recall of the ex parte judgment and
decree. This application dated 30.03.2016
ultimately came to be rejected by the court
on 04.04.2016 recording this fact that
neither-the compliance of the provision under
Section 17 of the Provincial Small Causes
Court Act was made, nor application was filed
under Order IX Rule 13 CPC. The Court also
observed that the application in these
circumstances filed under Section 151 CPC
was not maintainable-rejected - revision being
filed-the same was withdrawn without any
further liberty - the second recall application
before the court under Order IX Rule 13 was
clearly not maintainable.

Revision dismissed. (E-9)

List of Cases cited:

## Text

768 INDIAN LAW REPORTS ALLAHABAD SERIES

20. In fact, it is required on the part of
Trial Court to decide the application
19Ka2, which was not decided, but Trial
Court has given benefit of its own inaction
to the defendant nos. 2, 3, 4, 5, 6 & 7 which
is not permissible in law.

21. Now, coming to the consequenses
of non disposal of application 19Ka2.
Once, it is undisputed that publication has
been made and application has been filed
before the Trial Court, in all eventuality,
notice is deemed to be served after 90 days
from the date of submission of application
along with publication before the Trial
Court. Therefore, notice is sufficient.

22. In view of the facts and law
discussed
hereinabove,
orders
dated
13.09.2022 & 17.01.2023 are set aside and
writ petition is allowed.

23. No order as to costs.
----------
(2024) 12 ILRA 768
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.12.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

S.C.C. Revision No. 97 of 2024
Connected With
S.C.C. Revision No. 5 of 2024

Om Prakash & Anr. ...Revisionists
Versus
Bn Public School & Ors.
 ...Opposite Parties

Counsel for the Revisionists:
Arvind Srivastava

Counsel for the Opposite Parties:
Arun Kumar
Civil
Law
-
Code
of
Civil
Procedure,1908-Order IX R 13 - Section
151-Petitioner
-tenant
of
the
landlord
respondent-subject to an eviction suit for
recovery of arrears of rent-the suit proceeded
ex parte against the Petitioner-petitioner
moved an application initially under Section
151 CPC registered as Misc. Case No. 1 of
2016 for recall of the ex parte judgment and
decree. This application dated 30.03.2016
ultimately came to be rejected by the court
on 04.04.2016 recording this fact that
neither-the compliance of the provision under
Section 17 of the Provincial Small Causes
Court Act was made, nor application was filed
under Order IX Rule 13 CPC. The Court also
observed that the application in these
circumstances filed under Section 151 CPC
was not maintainable-rejected - revision being
filed-the same was withdrawn without any
further liberty - the second recall application
before the court under Order IX Rule 13 was
clearly not maintainable.

Revision dismissed. (E-9)

List of Cases cited:

1.
Order
on
C.M.
Delay
Condonation
Application NO.138010 of 2016

2. Shakti Tubes Ltd. Vs St. of Bihar &
ors.(2009) 1 Supreme Court Cases 786

3. Pankajbhai Rameshbhai Zalavadia Vs
Jethabhai Kalabhai Zalavadia (Deceased)
through LRs & ors.2018 0 AIR (SC) 490/ 2017
0 Supreme (SC) 963

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Shri Arvind Srivastava,
learned Advocate appearing for revision
applicant and Shri Ved Byas Mishra,
learned Advocate appearing for landlord
respondents.

2.
By
means
of
this
revision
application instituted under Section 25 of
the Provincial Small Causes Courts Act,
12 All. Om Prakash & Anr. Vs. Bn Public School & Ors.
769
1887 revision applicant has challenged the
order passed by the Judge Small Causes
rejecting his application filed under Order
IX Rule 13 CPC to set aside the ex parte
judgment and decree dated 27.10.2015
decreeing the SCC suit No. 07 of 2014.

3. Briefly stated the facts of the case
are that petitioner admittedly being a tenant
of the landlord respondent was subject to
an eviction suit for recovery of arrears of
rent vide SCC Case No. 07 of 2014.
Petitioner sought to contest the matter on
the plea that he was not the tenant of the
landlord respondent but was the owner of
the property in question and that the
municipal records carried his name in the
column of title of the property but
ultimately for his non-appearance in the
suit, the suit proceeded ex parte and got
finally decreed vide judgment and decree
dated 27.10.2015. Instead of challenging
the same before the higher court, petitioner
moved an application initially under
Section 151 CPC registered as Misc. Case
No. 1 of 2016 for recall of the ex parte
judgment and decree. This application
dated 30.03.2016 ultimately came to be
rejected by the court on 04.04.2016
recording
this
fact
that
neither
the
compliance of the provision under Section
17 of the Provincial Small Causes Court
Act was made, nor application was filed
under Order IX Rule 13 CPC. The Court
also observed that the application in these
circumstances filed under Section 151 CPC
was not maintainable.

4. This order was further challenged
before this Court by means of petition filed
under Article 227 of the Constitution
bearing No. 2726 of 2016, however, the
Court observed that the order was revisable
and, therefore, liberty was granted to file
revision and further certified copy was
directed to be returned to the petitioner
after obtaining photocopy thereof on
record. Petitioner was also directed to serve
a copy to Shri Pravin Kumar Giri, the then
counsel representing the landlord in the
event revision was filed. The order dated
22.04.2016 is reproduced hereunder:

"The
petitioners
have
an
alternative remedy of revision under
Section 25 of Provincial Small Cause
Courts Act, 1887. The petition is dismissed
on the ground of alternative remedy.

Office is directed to return the
certified copies of the orders to the counsel
for the petitioners after taking photostat
copies of the same.

When the revision is filed notice
of revision will be given to Sri Praveen
Kumar Giri, who has filed caveat in the
matter."

5. After this above order was passed,
instead of pursuing the remedy of revision
against the order rejecting the application
for recall, petitioner filed a composite
revision petition being SCC petition
(Defective) No. 98 of 2016 both against the
order
rejecting
the
Misc.
Recall
Application dated 04.04.2016 and also ex
parte
judgment
and
decree
dated
27.10.2015. However, before the court
could proceed to hear the matter on merits,
the counsel appearing on behalf of
petitioner made a statement before the
court that revision-applicant was giving up
challenge to the order dated 04.04.2016
rejecting the recall application. It is after
this statement came to be made that the
Court recorded this statement in its order
and
ultimately
dismissed
the
delay
condonation application for there being no
genuine explanation offered for delay in
filing the revision petition in respect of ex
parte judgment and decree. The order
770 INDIAN LAW REPORTS ALLAHABAD SERIES
passed by this Court rejecting the revision
application and recording the statement
made on behalf of petitioner giving up his
challenge to the order dated 04.04.2016
even though revision was directed against
that order also, is reproduced hereunder:

"Counsel for the revisionists
states that he is giving up the challenge to
order dated 4.4.2016 rejecting the recall
application. He further states that he is
confining the instant revision in so far as it
seeks to challenge the exparte judgement
and decree dated 27.10.2015 in SCC Suit
No.7 of 2014.

Order
on
C.M.
Delay
Condonation Application NO.138010 of
2016

Heard counsel for the parties.

The revision in view of statement
made above stands confined to order dated
27.10.2015, whereby SCC Suit No.7 of
2014 was decreed by the trial court for
recovery of arrears of rent and for eviction
of the defendants.

Indisputably,
initially
the
revisionists filed an application under
Section 151 CPC for recall of judgement
and decree dated 27.10.2015 alleging that
it is exparte against them. The application
was rejected by the court below by order
dated 4.4.2016 on the ground that the
revisionists have not complied with Section
17 of the Provincial Small Cause Courts
Act, 1887 (for short 'the Act'). The
application filed under Section 151 CPC
was also held to be not maintainable in
view of there being a specific remedy
available by way of Section 17 of the Act. It
is an admitted fact that the revisionists
thereafter filed a petition under Article 227
of
the
Constitution
challenging
the
judgement dated 27.10.2015 and order
dated 4.4.2016, but which was rejected by
this Court on the ground of availability of
alternative remedy.

The revision is reported to be
beyond time by 152 days.

From the facts narrated above, it
is clear that the revisionists sought recall
of judgement by filing a recall application
without depositing the decreetal amount
as required by Section 17 of the Act. When
the said application was rejected on the
ground of non-compliance of Section 17,
they approached this Court by way of a
petition
under
Article
227
of
the
Constitution in which also they could not
get any success. Thereafter, the instant
revision has been filed challenging the
order dated 4.4.2016 rejecting the recall
application and also the judgement dated
27.10.2015. To escape from the liability to
deposit the decreetal amount as required
under Section 17, they have chosen to give
up challenge to the order dated 4.4.2016,
though revision against the said order is
within limitation.

The affidavit filed in support of
the delay condonation application does
not offer any explanation whatsoever for
not seeking remedy by way of revision
before this Court against the judgement
passed in the suit within limitation
prescribed by law. It is more than clear
that the revisionists in order to avoid
depositing
of
decreetal
amount
in
compliance of Section 17 of the Act have
chosen to challenge the exparte judgement
and decree much after the limitation has
expired, without offering any explanation
for the delay.

Consequently,
the
delay
condonation application is rejected. As a
result, the revision also stands dismissed."

(Emphasis added)

6. It appears that after the revision was
dismissed, may be on the ground of delay,
12 All. Om Prakash & Anr. Vs. Bn Public School & Ors.
771
the petitioner moved another application,
this time under order IX rule 13 CPC which
was registered as Misc. Case No. 81 of
2016 against which petitioner separately
also moved an application for compliance
of Section 17 of Provincial Small Causes
Court Act making a plea that his request to
deposit security against the decretal amount
may be accepted and he may be permitted
to furnish the security bond. While these
applications came up for orders before the
court, the court rejected the same vide
order dated 11.12.2023 rejecting the plea
that petitioner was in any manner entitled
to benefit of Section 14 of the Indian
Limitation Act, 1963. The reason assigned
in the order impugned is that since the
application under Section 151 was moved
before the Court having jurisdiction,
therefore, principles of Section 14 would
not be attracted. It is this order dated
11.12.2023 which is assailed before this
Court.

7. Shri Arvind Srivastava, learned
Advocate appearing for revision applicant
has submitted that the court fell in manifest
error of law in rejecting the application on
the ground that Section 14 of the Limitation
Act, 1963 would not be attracted. In
support of his submission, learned counsel
for petitioner has placed before the Court
relevant provision of Section 14 of the
Limitation Act 1963, which is reproduced
hereunder:

"14.
Exclusion
of
time
of
proceeding bona fide in court without
jurisdiction:- (I) In computing the period of
limitation for any suit the time during
which the plaintiff has been prosecuting
with
due
diligence
another
civil
proceedings, whether in a court of first
instance or of appeal of revision, against
the defendant shall be excluded, where the
proceedings relates to the same matter in
issue and is prosecuted in good faith in a
court which, from defect of jurisdiction or
other cause of a like nature, is unable to
entertain it.

(2) In computing the period of
limitation for any application, the time
during which the applicant has been
prosecuting with due diligence another
civil proceedings, whether in a court of
first instance or of appeal or revision,
against the same party for the same relief
shall be excluded, where such proceedings
is prosecuted in good faith in a court
which, from defect of jurisdiction or other
cause of a like nature, is unable to
entertain it.

(3)
Notwithstanding
anything
contained in rule 2 of Order XXIII of the
Code of Civil Procedure, 1908 (5 of 1908)
the provisions of sub-section (I) shall apply
in relation to a fresh suit instituted on
permission granted by the court under rule
1 of that Order, where such permission is
granted on the ground that the first suit
must fall by reason of a defect in the
jurisdiction of the court or other cause of a
like nature.

Explanation - For the purposes of
this section-

(a) in excluding the time during
which a former civil proceeding was
pending, the day on which that proceeding
was instituted and the day on which it
ended shall both be counted.

(b) a plaintiff or an applicant
resisting an appeal shall be deemed to be
prosecuting a proceeding.

(c) misjoinder of parties or of
causes of action shall be deemed to be a
cause of a like nature with defect of
jurisdiction".

8. Mr. Srivastava, argued that the word
and expression "jurisdiction or other cause
772 INDIAN LAW REPORTS ALLAHABAD SERIES
of a like nature" needs interpretation. The
cause of a like nature would be akin to
jurisdiction
or
in
a
matter
where
entertainability
of
an
application
is
questioned, may be not maintainable. In the
instant case, it is submitted, though an
application under Section 151 CPC was
made before the same court which had the
jurisdiction, and technically speaking it
could not have been held maintainable as it
was not entertainable only because there
was an alternative provision available to
the petitioner to move an application under
Order IX Rule 13 CPC with compliance
made under Section 17 of the Provincial
Small Causes Court Act. Mr. Srivstava,
argued that whether the an application is
not maintainable or not entertainable would
amount to same and, therefore, even if the
application made was not competent and
not entertainable then benefit under Section
14 would be attracted in the event a
maintainable application was subsequently
filed. Thus, according to him, the period
spent in the remedy being pursued by way
of Section 151 CPC application and
consequential petitions filed against the
order rejecting the same, would be taken as
previous period spent in pursuing a wrong
remedy in good faith and as such
condonable under Section 14 of the Act.

9. In support of his submission,
learned counsel appearing for petitioner has
relied upon the judgment in the case of
Shakti Tubes Ltd. v. State of Bihar and
others (2009) 1 Supreme Court Cases 786.

10. Per contra, it is argued by Shri
Mishra, that it is a settled legal position that
if a court has jurisdiction to entertain an
application or a suit/ case then merely
because wrong provision has been quoted
in an application or a suit, it will not render
the court as corum non judice and,
therefore, proper course for the petitioner
was to pursue the remedy of revision that
he had filed after the liberty stood granted
by this Court on 22.04.2016 in a matter
filed under Article 227 No. 2726 of 2016. It
is submitted that since the petitioner
himself had withdrawn the challenge laid to
the order passed by the Court rejecting
application for recall may be under Section
151 CPC, and did not seek any liberty from
this Court while this Court dismissed the
revision against the ex parte judgment and
decree on 18.01.2019 quoting the statement
of the petitioner, it was not open for the
petitioner to file any fresh application
under Order IX Rule 13 CPC.

11. In support of his submission
learned counsel for landlord respondent has
relied upon judgment of Supreme Court in
the Case of Pankajbhai Rameshbhai
Zalavadia
v.
Jethabhai
Kalabhai
Zalavadia (Deceased) through LRs and
others 2018 0 AIR (SC) 490/ 2017 0
Supreme (SC) 963 he has placed before the
Court paragraph-14 of the judgment, which
is reproduced hereunder:

"14. In the matter on hand,
though the trial court had rightly dismissed
the application under Order 22 Rule 4 of
the Code as not maintainable at an earlier
point of time, in our considered opinion, it
needs to be mentioned that the trial Court
at that point of time itself could have
treated the said application filed under
Order 22 Rule 4 of the Code as one filed
under Order 1 Rule 10 of the CPC, in order
to do justice between the parties. Merely
because of the non- mentioning of the
correct provision as Order 1 Rule 10 of the
Code at the initial stage by the advocate for
the plaintiff, the parties should not be made
to suffer. It is by now well settled that a
mere wrong mention of the provision in the
12 All. Om Prakash & Anr. Vs. Bn Public School & Ors.
773
application would not prohibit a party to
the
litigation
from
getting
justice.
Ultimately, the Courts are meant to do
justice and not to decide the applications
based on technicalities. The provision
under Order 1 Rule 10 CPC speaks about
judicial discretion of the Court to strike out
or add parties at any stage of the suit. It
can strike out any party who is improperly
joined, it can add any one as a plaintiff or
defendant if it finds that such person is a
necessary or proper party. The Court under
Order 1 Rule 10(2) of the Code will of
course act according to reason and fair
play and not according to whims and
caprice. The expression ?to settle all
questions involved? used in Order 1 Rule
10 (2) of the Code is susceptive to a liberal
and wide interpretation, so as to adjudicate
all the questions pertaining to the subject
matter thereof. The Parliament in its
wisdom while framing this rule must be
held to have thought that all material
questions common to the parties to the suit
and to the third parties should be tried
once for all. The Court is clothed with the
power to secure the aforesaid result with
judicious
discretion
to
add
parties,
including third parties. There cannot be
any dispute that the party impleaded must
have a direct interest in the subject matter
of litigation. In a suit seeking cancellation
of sale deed, as mentioned supra, a person
who has purchased the property and whose
rights are likely to be affected pursuant to
the judgment in the suit is a necessary
party, and he has to be added. If such
purchaser
has
expired,
his
legal
representatives are necessary parties. In
the matter on hand, since the purchaser of
the suit property, i.e., defendant no.7 has
expired prior to the filing of the suit, his
legal representatives ought to have been
arrayed as parties in the suit while
presenting the plaint. As such impleadment
was not made at the time of filing of the
plaint in view of the fact that the plaintiff
did not know about the death of the
purchaser, he cannot be non-suited merely
because of his ignorance of the said fact.
To do justice between the parties and as the
legal representatives of the purchaser of
the suit property are necessary parties, they
have to be impleaded under Order 1 Rule
10 of
the
Code,
inasmuch
as
the
application under Order 22 Rule 4 of the
Code was not maintainable.

As mentioned supra, it is only if a
defendant dies during the pendency of the
suit that the provisions of Order 22 Rule 4
of the Code can be invoked. Since one of
the defendants i.e. defendant No.7 has
expired prior to the filing of the suit, there
is no legal impediment in impleading the
legal representatives of the deceased
defendant No.7 under Order 1 Rule 10 of
the Code, for the simple reason that the
plaintiff in any case could have instituted a
fresh
suit
against
these
legal
representatives on the date he moved an
application for making them parties,
subject of course to the law of limitation.
Normally, if the plaintiff had known about
the death of one of the defendants at the
time of institution of the suit, he would have
filed a suit in the first instance against his
heirs or legal representatives. The difficulty
that the High Court experienced in
granting the application filed by the
plaintiff under Order 1 Rule 10 of the Code
discloses, with great respect, a hypertechnical approach which may result in the
miscarriage of justice. As the heirs of the
deceased defendant no.7 were the persons
with vital interest in the outcome of the suit,
such applications have to be approached
keeping in mind that the Courts are meant
to do substantial justice between the parties
and that technical rules or procedures
should not be given precedence over doing
774 INDIAN LAW REPORTS ALLAHABAD SERIES
substantial justice. Undoubtedly, justice
according to the law does not merely mean
technical justice but means that law is to be
administered to advance justice."

12. Having heard learned counsel
appearing for respective parties and having
perused the records, two points arise for
consideration of the Court: (i) if a petition
challenging the order rejecting the recall
application under Section 151 CPC instead
of Order IX Rule 13 was got dismissed
with the liberty to challenge the order in
revision and upon revision being filed, the
same was withdrawn and that too without
any further liberty, was it still open for such
a party to file a miscellaneous application
for recall of ex parte judgment taking
recourse to Order IX Rule 13 CPC; and
(ii) whether in a revision petition filed
against the order passed upon a recall
application filed under Section 151 CPC
and the ex parte judgment, if against the
former, revision is got dismissed as
withdrawn without any further liberty and
in respect of later revision is dismissed
being barred by time, would it still entitle
revision applicant to question the ex parte
judgment by means of a fresh recall
application under Order IX Rule 13 CPC.
Both the above questions are inter-related
and, hence, are being addressed and
answered together.

13. While it is true that the judgment
in limine or order dismissing the the matter
in default may not amount to a judgment on
merits to attract the principles of res
judicata but at the same time it is a settled
legal proposition that an application if filed
before a competent court under a wrong
provision of law and decided holding it to
be not maintainable, it being an incorrect
view of law, it could have been challenged.
This order passed under Section 151 CPC
was challenged by petitioner by means of a
petition filed under Article 227 of the
Constitution bearing No. 2726 of 2016
which was disposed of with a liberty to file
revision only. The revision was very much
filed by the petitioner but he got the same
dismissed, meaning thereby he got recall
application dismissed may be on a wrong
premise by competent court of law as
withdrawn but without there being any
further liberty. In my considered view the
Court having the jurisdiction to hear and
decide an application for recall under Order
IX Rule 13 would be a competent court and
merely because a wrong provision was
mentioned
in
the
application,
the
application could not have been rejected as
not maintainable. This was a sound ground
available to petitioner to question the order
in revision and rightly so an opportunity
was afforded to him but for the reasons best
known to him, he got it dismissed as
withdrawn and then again the revision qua
judgment and decree was dismissed on the
ground of delay. The application under
Section 5 was dismissed for there being
lack of proper explanation offered for delay
in approaching the Court, inasmuch as the
Court observed that petitioner was avoiding
deposits that were to be made under
Section 17 of the Act.

14. These above observations that
have come up to be made by the Court
makes it absolutely clear that Misc.
Application for recall under Section 151
CPC was deliberately filed to avoid deposit
of decretal amount under Section 17 which
was a mandatory statutory requirement.
Petitioner could have taken permission of
the court to correct the provision mentioned
in recall application because court hearing
it
had
the
jurisdiction
to
entertain
application under Order IX Rule 13 as well.
Further, he had equally an opportunity to
12 All. Ram Kishor Dixit Vs. State of U.P. & Ors.
775
correct this error while he had questioned
the order rejecting recall in revision before
this Court but he deliberately withdrew it
for the reason that the court might have
expressed the view that for non-deposit
made under Section 17 no application for
recall could have been made and I find that
court recorded very categorically that
present petitioner was avoiding compliance
of Section 17 of Provincial Small Cause
Courts Act, 1887.

15. It is thus, clear that Misc.
Application for recall was filed before the
competent court having jurisdiction may be
mentioning a wrong provision of law and
this itself could not have invalidated the
application. The court could have tried it
provided the petitioner had made deposit
under Section 17 of the Act to press it on
merits. The court of course, rejected the
application on the ground that it was not
maintainable but the petitioner had the
opportunity to question it in revision but
instead of questioning it in revision on
merits, he chose to withdraw the same and
that too without any liberty to move any
application
afresh.
Thus,
for
the
observations that have come up to be made
by a Co-ordinate Bench of this Court while
deciding his revision petition filed against
the ex parte judgment under its order dated
18.01.2019, and there being no liberty
further availed by petitioner, the second
recall application before the court under
Order IX Rule 13 was clearly not
maintainable.

16. Still further, I do not find there to
be any averment coming up in the entire
petition regarding any deposit made of the
decretal amount under Section 17 of the
Provincial Small Cause Courts Act, 1887.
Petitioner?s
revision
has
also
been
dismissed, may be on the ground of delay,
confirming the order passed by the Judge
Small Causes for eviction.

17. Thus, the challenge laid to the ex
parte
judgment
and
decree
dated
11.12.2023 is also over. It is not stated that
this order of the High Court was further
challenged.

18. In such above view of the matter,
therefore, I do not find any justification to
interfere with the order passed by the court
rejecting application filed under Order IX
Rule 13 CPC.

19. Revision application is devoid of
merits
and
is
accordingly,
rejected.
However, it is clarified that this order will
not come in the way qua title of property
between the parties if being contested
before competent court of law/ forum.

20. For the reasons recorded and
discussed together above, the review
petition No. 5 of 2024 is also dismissed.

21. Cost made easy.
----------
(2024) 12 ILRA 775
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.11.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Special Appeal No. 973 of 2024

Ram Kishor Dixit ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Gyanesh Kumar, Manoj Kumar Singh