# Roshan Lal and others v. Rishi Pal Singh and others

- **Citation:** (2012) 3 ILRA 1334
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-10-18
- **Case number:** Civil Misc. Writ Petition No. 35114 of 2005
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/roshan-lal-and-others-v-rishi-pal-singh-and-others-42400
- **Pages:** 5

## Headnote

Small Causes Court Act, 1887-Section 17
(1) readwith Code of Civil ProcedureOrder 9 Rule 13-Setting-a-side-ex-parteDecree-application neither accompanied
with entire decreed amount nor with
exemption
application-held-furnishing
security towards decreed amount being
mandatory-application for setting-a-side
ex-parte Decree-not maintainable.

Held: Para-7

In my view, Revisional Court has not
only misread proviso to Section 17(1) of
Act, 1887 but has also ignored catena of
decisions of this Court as also that of
Apex Court, which have considered
proviso to Section 17(1) of Act, 1887
wherein it has been held unambiguously
that
requirement
of
deposit
or
application for security must accompany
or precede the application for setting
aside ex parte decree and not to be seen
on
the
date
of
hearing
of
such
application.
Case Law discussed:
1996 (1) ARC 76; 2002 (1) ARC 186; 1978 ALJ
738; 1979 AWC 256; 1983 1 ARC 565; 1985 1
ARC 54; 1988 1 ARC 310; 1988 (1) ARC 341;
1988 (2) ARC 575; 1991 (2) ARC 129; AIR
1991 All 223 : 1991(1) ARC 501; 1996 (27)
3 All] Roshan Lal and others V. Rishi Pal Singh and others
1335
ALR 540 : 1996 (1) ARC 414; AIR 1998 All.
125; 2000 (2) ARC 616

## Text

1334 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
granted the fire Arm licence. Writ petition
is allowed."

4. In the aforesaid authority of
Dinesh Kumar Pandey referred in the
above judgment the matter has very
thoroughly been examined by Hon'ble
Sudhir Agarwal, J.

5. Innumerable cases are coming
before the Court where without any reason
grant of licence to hold fire arm is being
denied on the ground that there is no actual
need. The authorities below must realise
that more often than not fire arm is required
to prevent a crime and not to commit the
same. A person who wants to commit a
crime does not wait for grant of fire arm
licence.

6. Accordingly, it is directed that if
henceforth any such matter comes before
the Court where D.M. has refused to grant
the arm licence on patent/ frivolous ground
that actual need had not been proved by the
applicant, direction will be issued for
making adverse entry in the service record
of the said D.M.

7. Writ Petition is allowed. Impugned
orders are set aside. D.M. shall pass fresh
order within two weeks from the date of
receipt of a certified copy of this order. If no
criminal case is pending against the
petitioner, licence shall be granted to him.

8. Office is directed to supply copy of
this order free of cost to Sri A.S. Rana,
learned standing counsel within a week. Sri
Rana shall send copies of this order to each
and every D.M. of the State as well as to the
Home Secretary and Chief Secretary to the
government of State.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.10.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 35114 of 2005

Roshan Lal and others
 ...Petitioner
Versus
Rishi Pal Singh and others ...Respondents

Counsel for the Petitioner:
Sri K.M. Garg

Counsel for the Respondents:
Sri Mahipal Singh

Small Causes Court Act, 1887-Section 17
(1) readwith Code of Civil ProcedureOrder 9 Rule 13-Setting-a-side-ex-parteDecree-application neither accompanied
with entire decreed amount nor with
exemption
application-held-furnishing
security towards decreed amount being
mandatory-application for setting-a-side
ex-parte Decree-not maintainable.

Held: Para-7

In my view, Revisional Court has not
only misread proviso to Section 17(1) of
Act, 1887 but has also ignored catena of
decisions of this Court as also that of
Apex Court, which have considered
proviso to Section 17(1) of Act, 1887
wherein it has been held unambiguously
that
requirement
of
deposit
or
application for security must accompany
or precede the application for setting
aside ex parte decree and not to be seen
on
the
date
of
hearing
of
such
application.
Case Law discussed:
1996 (1) ARC 76; 2002 (1) ARC 186; 1978 ALJ
738; 1979 AWC 256; 1983 1 ARC 565; 1985 1
ARC 54; 1988 1 ARC 310; 1988 (1) ARC 341;
1988 (2) ARC 575; 1991 (2) ARC 129; AIR
1991 All 223 : 1991(1) ARC 501; 1996 (27)
3 All] Roshan Lal and others V. Rishi Pal Singh and others
1335
ALR 540 : 1996 (1) ARC 414; AIR 1998 All.
125; 2000 (2) ARC 616

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard. Since pleadings are
complete, the Court proceed to decide the
case finally at this stage under the Rules
of the Court.

2. The dispute relates to a shop
situated at village Tatarpur Laluwala,
Mohalla
Adarsh
Nagar,
Najibabad,
District Bijnor. The shop is owned by
petitioners and respondents No.2 and 3.
The aforesaid shop was let out to
respondent
No.1.
Claiming
that
construction of shop was made in 1989,
provisions
of
Uttar
Pradesh
Urban
Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972 (hereinafter
referred to as "Act, 1972") are not
applicable and since there was a default in
payment of rent for more than two years
i.e.
from
1.9.1998,
petitioners
and
respondents No.3 and 4 vide notice dated
8.2.2001
determined
tenancy
of
respondent no.1 and thereafter filed suit
no.75 of 2002 for ejectment and recovery
of arrears of rent. It was decreed ex parte
by the Court of Small Cause, Bijnor vide
judgement dated 9.5.2003.

3. The respondent No.1 filed an
application dated 21.5.2003 under Order
IX, Rule 13 C.P.C. for setting aside ex
parte decree, which was registered as
Misc. Case No.19 of 2003. It was neither
accompanied by deposit in the Court the
amount due from defendant-applicant i.e.
respondent no.1 under the decree nor any
security for performance of the decree nor
any application for furnishing such
security. In other words there was no
compliance of Section 17(1) of Provincial
Small
Cause
Courts
Act,
1887
(hereinafter referred to as "Act, 1887").

4. Subsequently on 28.10.2003
respondent no.1 filed an application under
Section
17
of
Act,
1887
seeking
permission of Trial Court to furnish
security of Rs.9,600/- and deposit of
Rs.8003/- by Tender since according to
him total amount under decree would
come to Rs.17,603/-. The Trial Court,
vide order dated 5.12.2003 permitted the
deposit by tender subject to the rights of
the parties. Besides above, respondent
No.1 also filed an application under
Section 5 of Indian Limitation Act
seeking condonation of delay in filing
application for compliance of Section 17
of Act, 1887.

5. The said applications were
contested by petitioners. The Trial Court
vide order dated 25.8.2004 held that there
is no compliance of Section 17 of Act,
1887 and accordingly rejected application
under Order IX, Rule 13 C.P.C. for
setting aside ex parte decree. The Trial
Court besides non compliance of Section
17 also recorded finding of fact that there
was no sufficient ground explaining
absence on the date fixed when ex parte
decree was passed. The respondent no.1
preferred S.C.C. Revision No.27 of 2004
which has been allowed by Additional
District Judge, Court No.2, Bijnor by
means of impugned judgment dated
18.1.2005 observing that for the purpose
of Order IX, Rule 13, the Court must take
a liberal view. With respect to compliance
of Section 17(1) of Act, 1887 he has held
that if decretal amount is deposited on the
date of hearing of the application, that is
sufficient compliance of proviso to
Section 17 (1) of Act, 1887 and taking
this view the Revisional Court has relied
1336 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
decision of this Court in Ashok Kumar
Dhiman Vs. Smt. Chandrawati Mehta
1996(1) ARC 76.

6.

The
short
issue
up
for
consideration before this Court whether
there was compliance of proviso to
Section 17(1) of Act, 1887 in the present
case or not and whether the view taken by
Revisional Court that deposit need not be
on the date of submission of the
application for setting aside ex parte order
but if it is so on the date of hearing of
application, that would be sufficient
compliance of proviso to Section 17(1) of
Act, 1887, is correct?

7. In my view, Revisional Court has
not only misread proviso to Section 17(1)
of Act, 1887 but has also ignored catena
of decisions of this Court as also that of
Apex Court, which have considered
proviso to Section 17(1) of Act, 1887
wherein it has been held unambiguously
that requirement of deposit or application
for security must accompany or precede
the application for setting aside ex parte
decree and not to be seen on the date of
hearing of such application.

8. The Apex Court has considered
this aspect in Kedarnath Vs. Mohan Lal
Kesarwani & Ors., 2002(1) ARC 186.
The Court has clearly held that an
application moved for compliance of
Section 17 at a later stage after filing the
application for setting aside ex parte
decree cannot be considered as due
compliance since it would not fall within
the ambit of strict compliance of proviso
to Section 17. Paras 9 and 10 of judgment
reads as under:

"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.

10. In the case at hand, the
application for setting aside ex parte
decree was not accompanied by deposit in
the court of the amount due and payable
by the applicant under the decree. The
applicant
also
did
not
move
any
application for dispensing with deposit
and seeking leave of the court for
furnishing
such
security
for
the
performance of the decree as the court
may have directed. The application for
setting aside the decree was therefore
3 All] Roshan Lal and others V. Rishi Pal Singh and others
1337
incompetent. It could not have bee
entertained and allowed."

9. The Apex court has referred to the
several decisions of this Court which were
cited and has approved in the above
judgment which are Krishan Kumar v.
Hakim Mohd., 1978 ALJ 738, Sharif v.
Suresh Chand and Ors. 1979 AWC 256,
Roop Basant v. Durga Prasad and Anr.
1983 1 ARC 565, Mohd. Islam v.
Faquir Mohammad 1985 1 ARC 54,
Krishan Chandra Seth v. K.P. Agarwal
and Anr. 1988 1 ARC 310, Mamta
Sharma v. Hari Shankar Srivastava
and Ors. 1988 (1) ARC 341, Mohd.
Yasin v. Jai Prakash 1988 (2) ARC 575,
Purshottam
v.
Special
Additional
Sessions Judge, Mathura and Ors. 1991
(2) ARC 129, Ram Chandra (deceased
Lrs.) and Ors. v. IXth Additional
District Judge, Varanasi and Ors. AIR
1991 All 223 : 1991(1) ARC 501, Sagir
Khan
v.
The
District
Judge,
Farrukhabad and Ors. 1996 (27) ALR
540 : 1996 (1) ARC 414, Mohammad
Nasem v. Third Additional District
Judge, Faizabad and Ors. AIR 1998
All. 125 and Beena Khare v. VIIIth
Additional District Judge, Allahabad
and Anr. 2000 (2) ARC 616.

10. It is not disputed that at the time
of filing of application i.e. 21.5.2003
neither decretal amount was deposited nor
it
preceded
or
accompanied
any
application for furnishing security for
performance of decree. The decisions of
this Court in Ashok Kumar Dhiman
(supra) relied by Revisional Court would
not lend any help to respondent no.1 in
view of authoritative pronouncement on
the question by Apex Court in Kedarnath
(supra).
A
belated
application
for
purported compliance of Section 17(1) of
Act, 1887 has been deprecated by Apex
Court in Kedarnath (supra) as is evident
from para 11 of the judgment:

"11. The trial court was therefore
right in rejecting the application. The
District Judge in exercise of its revisional
jurisdiction could not have interfered with
the order of the trial court. The illegality
in exercise of jurisdiction by the District
Court disposing of the revision petition
was brought to notice of the High Court
and it was a fit case where the High Court
ought to have in exercise of its
supervisory jurisdiction set aside the order
of the District Court by holding the
application filed by the respondent as
incompetent and hence not entertainable.
We need not examine the other question
whether a sufficient cause for condoning
the delay in moving the application for
leave of the court to furnish security for
performance was made out or not and
whether such an application moved at a
highly belated stage and hence not being a
'previous
application'
was
at
all
entertainable or not."

11. In view of the above, impugned
revisional judgment cannot sustain. The
writ petition is allowed. The judgment
dated 18.01.2005 (Annexure No.14 to the
writ petition) passed by Revisional Court
is hereby set aside. The decree of
ejectment and recovery for arrears of rent
passed by Trial Court dated 25.8.2004
passed by Judge Small Cause Court,
Bijnor is hereby restored and confirmed.

12. No Costs.
---------
1338 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.10.2012

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No. 35608 of 1997

Bharat Singh and others
 ...Petitioner
Versus
District Basic Shiksha Adhikari, Bijnor
and others

 ...Respondents

Counsel for the Petitioner:
Sri V. Singh
Sri J.P.S. Chauhan
Sri Vivik Saran
Sri Abishek Srivastava
Sri Prasoon Tiwari

Counsel for the Respondents:
Sri P.D. Tripathi
S.C.

U.P. Basic Education Act 1972-Rule-8Exemption from B.T.C. Training-granted
to those teachers who had completed 10
years
continuous
service
as
per
Government Order-can not be made
applicable-with
regards
to
fresh
appointment-no relief for exemption can
be
granted
contrary
to
statutory
provisions-petition dismissed.

Held: Para-7

This government Order does not apply to
the fresh appointment. In the case of
fresh appointment, it is always open to
the employer to fix the qualification. The
qualification for the assistant teacher for
Basic Education is provided under Rule 8
of Rules, 1981. There is neither any
Government Order nor any notification
relaxing such qualification provided in
Rule 8. The qualification mentioned in
the advertisement is in consonance with
qualification
provided
in
Rule
8.
Therefore, the submission of learned
counsel for the petitioner that the
exemption from BTC training granted in
pursuance of the Government Order
dated
06.09.1994
should
also
be
considered
for
the
purposes
of
advertisement dated 31.08.1997 has no
substance.
Case Law discussed:
(2010) 8 SCC 701 (Para 36); J.T. 1994 (4) SC
532

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

1. All the petitioners passed
Intermediate examination conducted by
U.P. Board. The petitioner nos.1 and 2 are
of OBC category and petitioner nos.3 and
4 are of General Category. All the
petitioner were appointed as Assistant
Teachers on 01.07.1984 in Indira Shishu
Niketan Noorpur, Bijnor, a recognized
primary institution by U.P. Basic Shiksha
Parishad. They have completed their ten
years service in the said institution on
01.07.1994. The State Government issued
Government Order on 06.09.1994 and in
compliance thereof the Director of
Education passed an order on 30.09.1994
by which it was directed that all those untrained teachers working in a recognized
institution of the Basic Shiksha Parisiad
would be entitled for exemption from
BTC training on completion of ten years
service in a recognized institution of
Basic Shiksha Parishad. In compliance of
the said Government Order and the order
of Director Education, the respondent
no.3 by order dated 28.02.1995 has
granted exemption to the petitioner nos.1
and 3 from BTC training from 01.07.1994
and by his order dated 10.03.1995 has
granted exemption to the petitioner no.2
and by his order dated 04.04.1995 has
granted exemption to the petitioner no.4
from BTC training from 01.07.1994.