# Sabir Ahmad & Anr. Revisionists v. Khali Ulla

- **Citation:** (2022) 5 ILRA 1433
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-07
- **Case number:** S.C.C. Revision No. 43 of 2022
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sabir-ahmad-anr-revisionists-v-khali-ulla-48522
- **Pages:** 5

## Headnote

Civil Law - Code of Civil Procedure,1908 -
Order IX Rule 13 - Provincial Small Cause
Courts Act , 1887- Section 17-Revisionisttenant could not receive summon-suit decreed
ex-parte-Application under Order IX Rule 13
CPC-recall-decretal amount deposited as per
section 17 of the Provincial Small Cause Courts
Act- Application filed by landlord for releasing
the deposited amount-objection-can only be
released after disposal of application filedobjection rejected-amount if released beforewould frustrate the intention of legislature-result
in multiplicity of litigation-allowing application
for release of money is against section 17 of the
Act.

Revision allowed. (E-9)

List of Cases cited:

## Text

5 All. Sabir Ahmad & Anr. Vs. Khali Ulla
1433
There is no doubt on the point that at the
time of filing of Small Causes Case, rent
was claimed as Rs. 5,000/- per month and
accordingly, valuation of suit was more
than Rs. 1,00,000/-. Therefore, Court was
having jurisdiction to try the case and
jurisdiction can only be ceased based on
pecuniary limits subject to raising objection
in written submission, which was never
raised. Therefore, competence of Court
based
upon
jurisdiction
cannot
be
challenged without taking objection in
written submission at the first instance.
Apex Court in the matter of Om Prakash
Agarwal (Supra) has taken very same view
that no order can be passed contrary to
provisions of Section 21 of CPC, 1908.
Relying upon the very same judgement,
this Court in the matter of Rajendra Kumar
@ Vinay Kumar (supra) has also taken the
same view.

19. Therefore, under such facts of the
case as well as provisions of Section 21 of
CPC, 1908 and the judgements discussed
above, there is no illegality in the
impugned order.

20. Accordingly, revision lacks merit
and is dismissed.

21. No order as to costs.
----------
(2022)05ILR A1433
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.05.2022

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

S.C.C. Revision No. 43 of 2022

Sabir Ahmad & Anr. ...Revisionists
Versus
Khali Ulla ...Opposite Party
Counsel for the Revisionists:
Sri Muktesh Kumar Singh

Counsel for the Opposite Party:
Sri Pankaj Agarwal, Sri Pankaj Agarwal

Civil Law - Code of Civil Procedure,1908 -
Order IX Rule 13 - Provincial Small Cause
Courts Act , 1887- Section 17-Revisionisttenant could not receive summon-suit decreed
ex-parte-Application under Order IX Rule 13
CPC-recall-decretal amount deposited as per
section 17 of the Provincial Small Cause Courts
Act- Application filed by landlord for releasing
the deposited amount-objection-can only be
released after disposal of application filedobjection rejected-amount if released beforewould frustrate the intention of legislature-result
in multiplicity of litigation-allowing application
for release of money is against section 17 of the
Act.

Revision allowed. (E-9)

List of Cases cited:

1. Smt. Krishna Devi Vs Shobha Chandra; 1981
ALL. L.J. 989

2. Prem Chandra Mishra Vs IInd Addl. District
Judge, Etah & ors.; 2008 9 ADJ 13.
(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Muktesh Kumar Singh,
learned counsel for revisionists and Sri
Pankaj Agarwal, learned counsel for
opposite party.

2. Present revision has been filed
challenging the order dated 09.03.2022
passed by District Judge, Aligarh in Misc.
Case No. 340 of 2021 (Sabir Ahmad &
another vs. Khali Ulla) arising out of
S.C.C. Suit No. 22 of 2019 (Khali Ulla vs.
Sabir Ahmad & another).

3. Learned counsel for defendantsrevisionists submitted that SCC Suit No. 22
1434 INDIAN LAW REPORTS ALLAHABAD SERIES
of 2019 has been filed claiming rent of Rs.
5,000/- per month. Defendants-revisionists
could not receive summon, therefore, they
were unable to appear before the Court
below. Accordingly, the said suit was
decreed
ex
parte
vide
order
dated
07.12.2020. It is next submitted that after
knowing about the order dated 07.12.2020,
defendants-revisionists
have
moved
application under Order IX Rule 13 of CPC
for recalling of ex parte order dated
07.12.2020. It is also submitted that Section
17 of the Provincial Small Cause Courts
Act, 1887 (hereinafter referred to as ''Act,
1887') provides to deposit the decretal
amount for setting aside the ex parte
decree, therefore, defendants-revisionists
have also deposited the said amount. It is
next submitted that plaintiff-opposite party
has also moved application for releasing of
amount so deposited in his favour, upon
which defendants-revisionists have filed
objection dated 12.01.2022 with specific
case that this amount can only be released
after disposal of application filed under
Order IX Rule 13 of CPC and not before
that. Lastly, it is submitted that as per
Section 17(2) of Act, 1887, as on date,
defendants-revisionists are not liable to pay
the amount and they would be liable only if
application filed under Order IX Rule 13 of
CPC is rejected. In support of his
contention, he has placed reliance upon the
judgment of this Court in the matter of Smt.
Krishna Devi vs. Shobha Chandra; 1981
ALL. L.J. 989. Therefore, under such
circumstances, impugned order is bad and
liable to be set aside.

4. Per contra, Sri Pankaj Agarwal,
learned
counsel
for
opposite
party
submitted that recall application has been
filed by the defendants-revisionists with
specific case that rent of house in question
is only Rs. 200/-, therefore, in case of
appearance
of
defendants-revisionists
before the Court, they are required to fulfil
the conditions of Section 20(4) of The U.P.
Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972 (hereinafter
referred to as ''U.P. Act No. 13 of 1972').
He further submitted that Section 20(6) of
U.P. Act No. 13 of 1972 provides that any
amount so deposited by the tenant under
sub-section (4) or under Rule 5 of Order
XV of the First Schedule to the Code of
Civil Procedure, 1908 (Act No. 5 of 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. Court below has
rightly released the amount so deposited in
favour of landlord. In support of his
contention, he has placed reliance upon the
judgment of this Court passed in the matter
of Prem Chandra Mishra vs. IInd Addl.
District Judge, Etah and others; 2008 9
ADJ 13. He lastly submitted that in the
light of Sections 20(4) & (6) of U.P. Act
No. 13 of 1972 read with Order IX Rule 13
of CPC and Section 17(1) of Act, 1887,
there is no illegality in the impugned order,
therefore, present revision is liable to be
dismissed.

5. I have considered the rival
submissions advanced by learned counsels for
parties and perused the records, provisions of
law as well as judgments relied upon.

6. Facts of the case are undisputed and
only question which is to be decided is as to
whether the amount so deposited in
compliance of Section 17 of Act, 1887 along
with application under Order IX Rule 13 of
CPC be released in favour of landlord or not.

7. Before coming to any conclusion, it
is required to reproduce Section 17 of Act,
1887.
5 All. Sabir Ahmad & Anr. Vs. Khali Ulla
1435

"17. Application of the Code of
Civil Procedure.--(1) 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 subsection (1), the security may be realised in
manner provided by section 3[145] of the
Code of Civil Procedure, 4[1908 (5 of
1908)]."

8. From the perusal of language of
Section 17 of Act, 1887, it is very much
clear that though it was enacted to protect
the interest of landlord, but the interest of
tenant can also not be ignored. Therefore,
in Section 17(2) of Act, 1887, it has been
clearly held that where a person become
liable as surety under the proviso to subsection (1), the security may be realised.
Application under Order IX Rule 13 of
CPC has been filed to set aside the ex parte
decree and to protect the interest of
landlord, decretal amount has to be
deposited.
In
case
of
allowing
the
application under Order IX Rule 13 of CPC
and setting aside the ex parte , there would
have no occasion for landlord to realise the
security or encash the money so deposited.
In case of rejection of application under
Order IX Rule 13 of CPC, interest of
landlord is protected and he may realise the
amount so deposited.

9. This Court in the Smt. Krishna
Devi(Supra) has taken the very same view.
Relevant paragraph of the said judgment is
quoted below:-

"5. The second contention is
without substance. The amount deposited
by the defendant and security furnished
remained intact till such time that the
exparte decree was not set aside. It is only
after the ex parte decree had been set aside
that the amount and the security were
withdrawn. Although the proviso has been
incorporated in S. 17 to protect the interest
of the decree holder, but its language does
not justify the contention that the amount
deposited or the security furnished should
remain lying in the Court till such time that
the suit is disposed of. The deposit and the
security under the proviso have to remain
intact
during
the
pendency
of
the
application for setting aside the ex parte
decree. In case the application for setting
aside the ex parte decree is dismissed the
amount deposited will be adjusted towards
the decree and the security furnished
enforced for the same purpose. In the event
of the decree being set aside the purpose of
the deposit comes to an end. For there is no
decree left to be satisfied and the defendant
is free to withdraw this amount. Counsel
urged that this Court had passed an order
restraining the defendant from withdrawing
the amount or the security at the time when
this
revision
was
admitted.
Without
deciding as to whether the defendant
committed a breach of the direction of this
Court, the withdrawal would not affect the
validity of the application. For the deposit
and the security have to be maintained in
1436 INDIAN LAW REPORTS ALLAHABAD SERIES
case where the application is allowed, only
till such time that the application is not
decided in favour of the defendant."

10. Not only this, learned counsel for
opposite party has placed reliance upon
paragraph No. 18 of the judgment passed
by this Court in Prem Chandra Mishra
(Supra) in which the Court has taken the
very same view. Relevant paragraph of the
said judgment is quoted below:-

"18. 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 law. In case of
ex parte 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
Court Act, 1887 condition has been
imposed so that tenant does not take undue
advantage for non-appearance 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 even 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."

11. Therefore, as provided in
Section 17 of Act, 1887 as well as law
discussed here-in-above, it is apparent
that while framing Section 17 of Act,
1887, legislation was conscious enough
to protect the interest of landlord as well
as tenant. Section 17(1) of Act, 1887
provides for deposit of decretal amount
before moving application under Order
IX Rule 13 of CPC to protect the interest
of landlord whereas Section 17(2) of Act,
1887 provides that only in case a person
has become liable as surety, he may
realise the money which protects the
interest of tenant. Therefore, before
decision upon the application filed under
Order IX Rule 13 of CPC, if amount is
released,
that
would
frustrate
the
intention of legislation. In case money is
released prior to the decision upon the
application filed under Order IX Rule 13
of CPC, it may intend to multiplicity of
litigation as in case of allowing the
application, tenant would have no option
but to initiate separate legal proceeding
for recovery of the money so realised by
the
landlord. Therefore,
during
the
pendency of application filed under Order
IX Rule 13 of CPC, allowing the
application of release of money is against
the provisions of Section 17 of Act, 1887.

12. So far as compliance of Sections
20(4) & (6) of U.P. Act No. 13 of 1972 is
concerned, in case of setting aside of ex
parte decree, it is open for SCC Court to
ensure the compliance of necessary
statutory provisions. In case of noncompliance of any provision, it is also
open for the parties to move appropriate
application before the SCC Court under
the provisions of Rules and it is
incumbent upon the SCC Court to decide
the same in accordance with law.

13. Therefore, in light of observations
made
here-in-above,
order
dated
5 All. Ram Autar Khandelwal Vs. Addl. District & Session Judge Lucknow & Anr.
1437
09.03.2022 passed by District Judge,
Aligarh is hereby set aside.

14. Accordingly, Revision is allowed.

15. No order as to costs.
----------
(2022)05ILR A1437
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.03.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

S.C.C. Revision Defective No. 45 of 2020

Ram Autar Khandelwal ...Revisionist
Versus
Addl. District & Session Judge Lucknow &
Anr. ...Opposite Parties

Counsel for the Revisionist:
Nirankar Nath Jaiswal, Prashant Jaiswal

Counsel for the Opposite Parties:
Umesh Kumar Tiwari

Civil
Law
-
Code
of
Civil
Procedure,1908 - Order XV Rule 5Despite application being made-defendant
not paid at all during pendency of suitneither in account nor in cash in the Court
concerned -where suit for arrears of rent
and eviction was pending-decree in favour
of Landlord-upheld.

Revision rejected. (E-9)

List of Cases cited:

1. Hari Shankar & ors. Vs Rao Girdhari Lal
Chowdhury AIR 1963 Supreme Court 698

2. Rama Murti Devi Vs Pushpa Devi & ors. 2017
(15) SCC 230

3. Mundri Lal Vs Sushila Ram (2007) 8 SCC
609
4. "Bal Gopal Maheshwari & ors. Vs Sanjeev
Kumar Gupta 2013 (6) AWC 5823 (SC)

5. Bimal Chand Jain Vs Shri Gopal Agarwal 1981
(3) SCC 486
(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1.

Heard
learned
counsel
for
Revisionist and learned counsel appearing
on behalf of the Respondent, Mr. Umesh
Kumar Tiwari at length.

2. This Civil Revision has been filed
against the judgment and order dated
08.10.2020
passed
by
the
learned
Additional District & Sessions Judge,
Court No. 19, Lucknow in SCC No. 30 of
2017, 'Ajay Kumar Agarwal Vs. Ram Autar
Khandelwal' with a delay of around one
month. Although time was granted earlier
to
the
counsel
for
the
contesting
respondents to file objections but he has not
filed objections.

3. Learned counsel for the respondent
no.2 says that he does not propose to file
any objection and the matter be heard on
merits.

4. Delay is condoned.

5. Office is directed to give a Regular
number to this Revision.

6. It is the case of the Revisionist that
the respondent landlord had given a shop
on monthly rent of Rs.5,500/- to the
Revisionist in 2008. Since then the
Revisionist has been paying advance rent
continuously either through cash or cheque
on demand of the landlord as mutually and
orally agreed upon by them. It has been
alleged that the respondent's son had asked
the Revisionist for Rupees Two Lakhs for