# Sanjay Mishra @ Ashu v. Magan Pandey & Anr

- **Citation:** (2023) 5 ILRA 268
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-20
- **Case number:** Matters Under Article 227 No. 2716 of 2023
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-mishra-ashu-v-magan-pandey-anr-50197
- **Pages:** 10

## Headnote

Law
-
Ex-parte
decree
-
Compliance of Section 17 - Code of Civil
Procedure, 1908 - Order IX Rule 13 r/w
Section 151 - Provincial Small Cause
Courts Act, 1887: Section 17 - No one can
take benefit of his own fault and certainly
dismissal of the petition/application in
default solely due to fault on the part of
the counsel for the party. For which, he
cannot be extended any extra benefit
contrary to the provisions of law. (Para 22)

While allowing restoration application, no
liberty can be granted to petitionerdefendant for compliance of Section 17 of
Act, 1887. (Para 17, 23)

Undisputed facts of the case are that plaintiffsrespondents have filed S.C.C. Suit No. 99 of
2016 for eviction and payment of rent, which
was ex parte decided vide order dated
03.02.2020. Petitioner-defendant has filed an
application u/Order IX Rule 13 r/w Section 151
of CPC on 29.2.2020 without compliance of
Section 17 of Act, 1887, which was dismissed in
default vide order dated 12.2.2021. Thereafter,
petitioner-defendant has moved restoration
application, which was allowed vide order dated
10.3.2022 with observation to comply the
Section 17 of Act, 1887. (Para 16)

From conjoint reading of Section 17 of Act, 1887
and Order IX Rule 13 of CPC, it is apparent that
such observation is wholly unwarranted and
contrary to provision of rules. S.C.C. Court itself
had clarified the same in its order dated
3.2.2020. In fact, restoration application has
never filed along with prayer for seeking
permission to comply the provision of
Section 17 of Act, 1887, but it was only
filed to recall its order dated 12.1.2022,
therefore, such observation cannot be
treated an order from the Court, which is in
teeth of settled provisions of law. (Para 20)

B. No application u/Order IX Rule 13 of
CPC can be filed without compliance of
Section 17 of Act, 1887. Section 17 of Act,
1887 is mandatory having no provision of
extension of time. (Para 19)

In case application u/Order IX Rule 13 r/w
Section 151 CPC dated 29.2.2020 would not
have been dismissed in default, petitionerdefendant would have no occasion to obtain
such order for compliance of Section 17 of Act,
1887 upon the restoration application. (Para 15,
21)

C. 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. It
may be filed at any time up to the time of
presentation of application for setting aside exparte 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
5 All. Sanjay Mishra @ Ashu Vs. Magan Pandey & Anr.
269
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. (Para 30)

In the present case, neither application of
petitioner u/Order IX Rule 13 of CPC was
accompanied alongwith deposit required u/s 17
of Act, 1887 nor having any application to
dispense with the deposit of Section 17 of Act,

## Text

268 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2023) 5 ILRA 268
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.04.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters Under Article 227 No. 2716 of 2023
(CIVIL)

Sanjay Mishra @ Ashu ...Petitioner
Versus
Magan Pandey & Anr. ...Respondents

Counsel for the Petitioner:
Sri Shubham Srivastava, Sri Sunil Kumar
Srivastava

Counsel for the Respondents:
Sri Ramesh Chandra Agrahari

A.
Civil
Law
-
Ex-parte
decree
-
Compliance of Section 17 - Code of Civil
Procedure, 1908 - Order IX Rule 13 r/w
Section 151 - Provincial Small Cause
Courts Act, 1887: Section 17 - No one can
take benefit of his own fault and certainly
dismissal of the petition/application in
default solely due to fault on the part of
the counsel for the party. For which, he
cannot be extended any extra benefit
contrary to the provisions of law. (Para 22)

While allowing restoration application, no
liberty can be granted to petitionerdefendant for compliance of Section 17 of
Act, 1887. (Para 17, 23)

Undisputed facts of the case are that plaintiffsrespondents have filed S.C.C. Suit No. 99 of
2016 for eviction and payment of rent, which
was ex parte decided vide order dated
03.02.2020. Petitioner-defendant has filed an
application u/Order IX Rule 13 r/w Section 151
of CPC on 29.2.2020 without compliance of
Section 17 of Act, 1887, which was dismissed in
default vide order dated 12.2.2021. Thereafter,
petitioner-defendant has moved restoration
application, which was allowed vide order dated
10.3.2022 with observation to comply the
Section 17 of Act, 1887. (Para 16)

From conjoint reading of Section 17 of Act, 1887
and Order IX Rule 13 of CPC, it is apparent that
such observation is wholly unwarranted and
contrary to provision of rules. S.C.C. Court itself
had clarified the same in its order dated
3.2.2020. In fact, restoration application has
never filed along with prayer for seeking
permission to comply the provision of
Section 17 of Act, 1887, but it was only
filed to recall its order dated 12.1.2022,
therefore, such observation cannot be
treated an order from the Court, which is in
teeth of settled provisions of law. (Para 20)

B. No application u/Order IX Rule 13 of
CPC can be filed without compliance of
Section 17 of Act, 1887. Section 17 of Act,
1887 is mandatory having no provision of
extension of time. (Para 19)

In case application u/Order IX Rule 13 r/w
Section 151 CPC dated 29.2.2020 would not
have been dismissed in default, petitionerdefendant would have no occasion to obtain
such order for compliance of Section 17 of Act,
1887 upon the restoration application. (Para 15,
21)

C. 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. It
may be filed at any time up to the time of
presentation of application for setting aside exparte 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
5 All. Sanjay Mishra @ Ashu Vs. Magan Pandey & Anr.
269
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. (Para 30)

In the present case, neither application of
petitioner u/Order IX Rule 13 of CPC was
accompanied alongwith deposit required u/s 17
of Act, 1887 nor having any application to
dispense with the deposit of Section 17 of Act,
1887. Even in restoration application, there is no
such prayer to grant permission to comply the
Section 17 of Act, 1887. Therefore, petitioner
is not entitled for any relief to comply the
provision of Section 17 of Act, 1887 after
filing of application u/Order IX Rule 13 of
CPC r/w 151 CPC. (Para 32)

Writ petition dismissed. (E-4)

Precedent followed:

Keadarnath Vs Mohan Lal Kesarwari, AIR 2002
SC 582 (Para 14, 30)

Precedent distinguished:

1. Shyam Kumar Gupta & ors. Vs Shubham Jain,
Civil Appeal No. 765 of 2023 arising out of SLP
(C) No. 2542 of 2023 (Para 6, 8, 9, 26, 33)

2. Smt. Sushma Agarwal Vs District Judge, Agra
& ors., Matters Under Article 227 No. 4089 of
2018 (Para 6, 10, 29, 33)

Present petition challenges judgment and
order dated 13.2.2023, passed by the
Additional District Judge, Court No. 18,
Kanpur Nagar in Misc. Case No. 251 of
2020, whereby application u/Order 9 Rule
13 C.P.C. for setting aside ex-parte
judgment and decree dated 03.02.2020
has been rejected.

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Sunil Kumar Srivastava,
learned counsel for the petitioner and Sri
Ramesh Chandra Agrahari, learned counsel
for the respondents.

2. Present petition has been filed for
challenging the judgment and order dated
13.2.2023 passed by the Additional District
Judge, Court No.18, Kanpur Nagar in Misc.
Case No. 251 of 2020 (Sanjay Mishra @
Aashu Vs. Magan Pandey and others)
arising out of SCC Suit No.99 of 2016
(Magan Pandey and another vs. Sanjay
Mishra @ Aashu) whereby application
under Order 9 Rule 13 C.P.C. for setting
aside ex-parte judgment and decree dated
3.2.2020 has been rejected.

3. Since, only legal question is
involved in the present petition, therefore,
with the consent of parties without inviting
for affidavits, petition is being decided at
the admission stage itself.

4. Learned counsel for the petitioner
submitted that plaintiffs-respondents have
filed S.C.C. Suit No. 99 of 2016 for
eviction and payment of rent, which was ex
parte decided vide order dated 3.2.2020.
Against
that,
petitioner-defendant
has
moved an application under Order IX Rule
13 read with Section 151 of CPC on
29.2.2020, which was dismissed in default
vide order dated 12.2.2021. After dismissal
of the said application, petitioner-defendant
has moved restoration application, which
was allowed vide order dated 10.3.2022
with liberty to ensure the compliance of
Section 17 of Provincial Small Cause
Courts Act, 1887 (hereinafter referred to as
Act, 1887). Thereafter, petitioner-defendant
has moved an application on 6.4.2022 for
compliance of Section 17 of Act, 1887. The
said application was rejected vide order
dated 13.2.2023 on the ground that while
filing application under Order IX Rule 13
of CPC, he has not complied the Section 17
of Act, 1887 and in case treating that he has
complied the Section 17 of Act, 1887, even
270 INDIAN LAW REPORTS ALLAHABAD SERIES
though same was not the full compliance as
full amount has not been deposited.

5. Learned counsel for the petitioner
assailed the impugned order on two
grounds; First of all, Court itself while
allowing
the
restoration
application,
granted
permission
to
ensure
the
compliance of Section 17 of Act, 1887,
therefore, there is no occasion for the Court
to reject the application for non compliance
of Section 17 of Act, 1887. Secondly, in
case
of
part
compliance,
petitionerdefendant may have been given liberty for
remaining
compliance
to
make
the
deficiency good.

6. In support of his contention, he has
placed reliance upon the judgment of Apex
Court as well as this Court in the cases of
Shyam
Kumar
Gupta
& Ors.
vs.
Shubham Jain passed in Civil Appeal
No.765 of 2023 arising out of SLP (C)
No.2542 of 2023 and Smt. Sushma
Agarwal vs. District Judge, Agra and 2
others passed in Matters Under Article 227
No. 4089 of 2018.

7. Sri Ramesh Chandra Agrahari,
learned counsel for the respondents has
vehemently opposed the submission of
learned counsel for the petitioner and
submitted that Order IX Rule 13 read with
Section 151 CPC clearly provides that at
the time of filing of application, provision
of Section 17 of Act, 1887 must have been
complied with. In the present case, there is
no dispute on the point that while filing the
application under Order IX Rule 13 of
CPC, he has not complied the Section 17 of
Act, 1887, therefore, there is no illegality
or perversity in the impugned order.

8. He next submitted that so far as
judgment of Apex Court in the case of
Shyam Kumar Gupta (supra) is concerned,
that is not applicable in the case of
petitioner for the reason that in the said
case, decretal amount was not clear
whereas in the present case ex parte decree
and judgment was given on 3.2.2022,
decree was prepared on 12.2.2022 and
application under Order IX Rule 13 of CPC
was filed on 22.2.2022 meaning thereby
that petitioner had full knowledge about the
decretal amount even though he has not
deposited
the
single
penny,
while
submitting the application under Order IX
Rule 13 of CPC.

9. He next submitted that facts of
judgment of Apex Court in the case of
Shyam Kumar Gupta (supra) are different.
In that case, there are some certain error in
quantifying the amount in decree, therefore,
full compliance of Section 17 of Act, 1887
could not be made. Court considering this
fact has given liberty to petitionerdefendant to deposit the amount for full
compliance of Section 17 of Act, 1887.

10. He also submitted that so far as
judgment of this Court in the case of Smt.
Sushma Agarwal (supra) is concerned that
is also not applicable for the very same
reason in that case, petitioner-defendant has
deposited Rs.85,000/- in cash, which was
accepted by the landlord, therefore, Court
has taken view that in such matter
opportunity must have been given for
compliance of Section 17 of Act, 1887.

11.
He
also
pointed
out
that
permission of compliance of Section 17 of
Act, 1887 vide order dated 10.3.2022 while
allowing the restoration application is
contrary to law, therefore, considering this
fact, Court in its ex parte decree and
judgment, made it clear that while passing
the order dated 10.3.2022, it was not
5 All. Sanjay Mishra @ Ashu Vs. Magan Pandey & Anr.
271
intention of Court to grant time for
compliance of Section 17 of Act, 1887 after
restoration of application Order IX Rule 13
of CPC.

12. He further submitted that second
ground taken by the learned Court below
while rejecting the application under Order
IX Rule 13 of CPC is having full force. In
fact, Court has only held that in case in the
interest of justice, if it has been accepted
that petitioner had deposited the amount,
that is also not full compliance. In present
case, intention of petitioner was from the
very day one was not appears to be proper.
He first deposited the zerox copy of bank
draft in his own name, which cannot be
treated compliance of Section 17 of 1887.
Thereafter, he deposited the two cheques
amounting to Rs. 1,14,000/-, which is not
fulfilling the requirement of provision of
Section 17 of Act, 1887 as the decretal
amount was Rs.2,07,611/-.

13. He firmly submitted that petitioner
is taking benefit of his own fault as after
dismissal of his application under Order IX
Rule 13 of CPC in default, he has filed
restoration application dated 10.3.2022 in
which he was given liberty for compliance
of Section 17 of Act, 1887. He further
submitted that if it would have not been
dismissed in default, petitioner would has
no occasion to obtain order to fulfill the
deficiency of Section 17 of Act 1887.
Therefore,
there
is
no
illegality
or
perversity in the impugned order and
petition is liable to be dismissed with heavy
costs.

14. In support of his contention, he has
placed reliance upon the judgment of Apex
Court as well as this Court in the cases of
Keadarnath Vs. Mohan Lal Kesarwari
reported in 2002 0 AIR (SC) 582.

15. Being confronted by the Court,
learned counsel for the petitioner could not
dispute this fact that in case in absence of
dismissal of application under Order IX
Rule 13 of CPC, he would have no
occasion to obtain order to fulfill the
requirement of Section 17 of Act, 1887.

16. I have considered the rival
submissions advanced by the learned
counsel for the parties and perused the
record as well as judgments relied upon.
Undisputed facts of the case are that
plaintiffs-respondents have filed S.C.C.
Suit No. 99 of 2016 for eviction and
payment of rent, which was ex parte
decided
vide
order
dated
3.2.2020.
Petitioner-defendant
has
filed
an
application under Order IX Rule 13 read
with Section 151 of CPC on 29.2.2020
without compliance of Section 17 of Act,
1887, which was dismissed in default vide
order
dated
12.2.2021.
Thereafter,
petitioner-defendant has moved restoration
application, which was allowed vide order
dated
10.3.2022
with observation
to
comply the Section 17 of Act, 1887.

17. Now, the issue before this Court is
that as to whether while allowing the
restoration application, S.C.C. Court can
grant liberty to petitioner-defendant to
comply the Section 17 of Act, 1887 and
whether it is case of part compliance of
Section 17 of Act, 1887 or not.

18. I have perused the Order IX Rule
13 of CPC as well as Section 17 of Act,
1887, which are quoted hereinbelow:-

Section 17 of Act, 1887.

"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
272 INDIAN LAW REPORTS ALLAHABAD SERIES
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 21 [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 22 [145] of the
Code of Civil Procedure, 23 [1908] (5 of
1908)."

Order IX Rule 13 of CPC

"13. 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 he was prevented by any sufficient
cause from appearing 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:

1[Provided further than no Court
shall set aside a decree passed ex parte
merely on the ground that there has been
an irregularity in the service of summons, if
it is satisfied that the defendant had notice
of the date of hearing and had sufficient
time to appear and answer the plaintiff's
claim.]

2[Explanation.-Where there has
been an appeal against a decree passed ex
parte under this rule, and the appeal has
been disposed of an 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.]"

19. From perusal of the same, it is
apparently clear that no application under
Order IX Rule 13 of CPC can be filed
without compliance of Section 17 of Act,
1887.
Undisputedly,
petitioner
has
preferred
application
dated
29.2.2020
without compliance of Section 17 of Act,
1887, which was ultimately dismissed in
default vide order dated 12.2.2021. Against
that, restoration application has been filed,
which was allowed vide order dated
10.3.2022 with the observation to comply
the Section 17 of Act, 1887. Section 17 of
Act,
1887
is
mandatory having
no
provision of extension of time.

20. From conjoint reading of Section
17 of Act, 1887 and Order IX Rule 13 of
CPC, it is apparent that such observation is
wholly
unwarranted
and
contrary
to
provision of rules. Therefore, considering
this fact, S.C.C. Court itself had clarified
the same in its order dated 3.2.2020. In
fact, restoration application has never filed
along with prayer for seeking permission to
comply the provision of Section 17 of Act,
1887, but it was only filed to recall its order
dated
12.1.2022,
therefore,
such
observation cannot be treated an order from
the Court, which is in teeth of settled
provisions of law.
5 All. Sanjay Mishra @ Ashu Vs. Magan Pandey & Anr.
273

21. It is also undisputed that in case
application under Order IX Rule 13 read
with Section 151 CPC dated 29.2.2020
would not have been dismissed in default,
petitioner-defendant
would
have
no
occasion
to
obtain
such
order
for
compliance of Section 17 of Act, 1887
upon the restoration application.

22. It is also settled that no one can
take benefit of his own fault and certainly
dismissal of the petition/application in
default solely due to fault on the part of the
counsel for the party. For which, he cannot
be extended any extra benefit contrary to
the provisions of law, therefore, first
argument of learned counsel for the
petitioner is having no force.

23. In light of discussion made
hereinabove, this Court is of the firm view
that while allowing restoration application,
no liberty can be granted to petitionerdefendant for compliance of Section 17 of
Act, 18887

24. Second argument of petitioner is
that he should have been given opportunity
to fulfill the remaining compliance of
Section 17 of Act, 1887, if any.

25. I have perused the judgment of this
Court in the case of Shyam Kumar Gupta
(Supra) relied by the learned counsel for
the petitioner. The relevant paragraphs of
the said judgment are being quoted
hereinbelow:-

"15. It could be reasonably
noticed that in relation to the suit to which
the Act of 1887 applies, an applicant
seeking an order to set aside the decree
passed ex parte is required to deposit the
amount due under the decree/judgment or
has to furnish security for due performance
of the decree or compliance with the
judgment. Even under Order IX Rule 13
CPC, while making an order for setting
aside the decree passed ex parte, the Court
may put the defendant to terms as to costs,
payment into Court or otherwise. However,
these requirements need to be visualized
from a practical standpoint and cannot be
applied as if to penalize the defendant for
every mistake, even if the amount payable
is not explicitly quantified in the decree in
question.

15.1. For the purpose of the case
at hand, as regards the amount payable, a
sum of Rs. 8,000/- towards arrears of rent
had been quantified in the decree and
another sum of Rs. 3,212/- towards costs
could have been taken as quantified. Of
course, the plaintiff was further held
entitled to receive Rs. 2,000/- per month
towards rent/mesne profits during the suit
and until getting the actual vacant
possession of the suit shop after payment of
requisite court fees but, the Trial Court did
not
specifically
quantify
the
amount
payable by the defendant even until the
date of decree. In the given circumstances,
when the defendant, predecessor of the
appellants, immediately moved the Court
after noticing the decree in question and
deposited the amount directly quantified
thereunder i.e., the sum of Rs. 8,000/-
towards arrears of rent and Rs. 3,212/-
towards costs, totalling to Rs. 11,212/-,
while seeking the order for setting aside ex
parte decree, it had not been a case where
the defendant had ignored the requirements
of deposit altogether. Moreover, the decree
in question had not been merely a money
decree but had been for eviction too.
Looking to the subject-matter of the suit
and the overall circumstances, a practical
view was required to be taken and if all any
further deposit or furnishing of security
was considered necessary, appropriate
274 INDIAN LAW REPORTS ALLAHABAD SERIES
orders could have been passed in that
regard. Putting it differently, in terms of
Section 17 of the Act of 1887 read with
Order IX Rule 13 CPC, the Court could
have extended the time for making deposit
if so required, or could have put the
defendant to the terms of security for
performance of the decree.

15.2. However, for what has been
noticed and extracted hereinabove, it is
apparent that Trial Court and the High
Court have viewed the requirements of
Section 17 of the Act of 1887 from such an
exacting and rather impractical standpoint
that the bonafide attempt of the defendant
to seek a merit decision of the suit after due
contest has been totally ignored. In our
view, in the present set of facts and
circumstances, prayer of the defendant to
set aside ex parte decree could not have
been denied for want of further deposit in
terms of the decree in question.

15.3. The High Court, while
dismissing the petition filed by the
appellants and endorsing the views of the
Trial Court, has proceeded to rely upon the
decision of this Court in the case of
Kedarnath (supra), that the provisions of
Section 17 of the Act of 1887 are held to be
mandatory. In our view, reference to the
said decision remains inapposite in the
present case. Even if the requirements of
Section 17 of the Act of 1887 are held to be
mandatory, the present one had not been a
case where the defendant had altogether
ignored those requirements. In Kedarnath
(supra), in the very passage reproduced by
the High Court, it was clearly noticed that
the applicant did not make any deposit and
did
not
move
any
application
for
dispensing with deposit or seeking leave of
the Court for furnishing security. In the
backdrop of such facts, showing total non-
compliance of the requirements of Section
17 of the Act of 1887, this Court held the
application for setting aside the decree as
incompetent. It is difficult to apply the
decision in Kedarnath (supra) to the facts
of the present case.

16. Apart from the above, where
we find that the Trial Court and the High
Court had taken too technical and
impractical a view of the matter, there is
another strong reason for which we are
inclined to accept the prayer for setting
aside the decree passed ex parte in this
case. As noticed, in response to the queries
of
this
Court,
the
appellants
have
immediately taken bonafide steps and have
deposited the amount which may be
relatable to rent/mesne profits until the
month of April, 2023. For this bonafide and
prompt step (albeit taken after approaching
this Court), in our view, they do deserve an
opportunity to contest the suit on merits,
particularly when the matter relates to a
shop
where
the
predecessor
of
the
appellants had been continuing as tenant
and the plaintiff-respondent is seeking the
decree for eviction only on the ground of
default in payment of rent."

26. From perusal of the above
paragraphs of the aforesaid judgment, it is
apparently clear that there are some factual
error in quantifying the amount in decree
and trial Court has not specifically quantify
the amount payable by the defendant even
untill the date of decree. Due to which,
petitioner-defendant has deposited certain
amount to his understanding and for
remaining,
Court
has
permitted
to
petitioner-defendant to deposit amount for
full compliance of Section 17 of Act, 1887.

27. So far as present case is concerned,
there is no dispute on the point that
judgment was delivered on 3.2.2022,
decree was prepared on 12.2.2022 and
application under IX Rule 13 of CPC was
5 All. Sanjay Mishra @ Ashu Vs. Magan Pandey & Anr.
275
filed on 22.2.2022 without depositing
single penny for compliance of Section 17
of Act, 1887, therefore, this judgment
would not come in the rescue of petitioner.

28. I have also perused the judgment
of this Court in the case of Smt. Sushma
Agarwal (Supra) relied by petitioner. The
relevant paragraphs of the said judgment
are being quoted hereinbelow:-

"13. The Supreme Court has
observed that the proviso of Section 17
does not provide any extent of time by
which such application for dispensation for
prior deposit of the decretal amount may be
filed. The Court has observed "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. 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."

17. The learned counsel for the
respondents has also relied upon a Division
Bench decision of this Court in Raj Kumar
Makhija and others Vs. M/s. SKS and Co.
and others, 2000 (3) ARC 117 that it is duty
of the applicant to calculate the correct
decretal amount as per the decree and
Court is not required to get the decretal
amount calculated for the applicant. If
there is any shortfall due to calculation
made for any reason its consequences will
follow and wrong calculation will provide
no shelter to such an applicant.

18. It has been held by the
Division Bench that any application filed
by the tenant-defendant to make good the
shortfall either in the deposit of security
after expiry of period of limitation is of no
consequence. The application for setting
aside the ex-parte decree would be
dismissed for non compliance of the
proviso to Section 17 of the Act. It has also
been held that any amount deposited after
expiry of period of limitation will also be
taken into consideration for judging the
compliance of the proviso to Section 17 of
the Act. However, it has also observed that
the Court can ignore the shortfall in
deposit of a negligible amount on the
principle of deminimis as explained in the
body of the judgment. It has held further
that there is no provision conferring power
on the Court to condone the delay in
making deposit and provisions of Section 5
of the Limitation Act will not be applicable
to the deposit contemplated under the
proviso to Section 17 of the Act.

20.
I
have
considered
the
arguments raised by the learned counsel
for the petitioner-tenant and also by the
learned counsel for the respondent. No
doubt that the provisions of Section 17 of
the PSCC Act are mandatory in nature. It
is, however, true that the petitioner had
deposited
Rs.85,000/-
before
the
application under Order 9 Rule 13 of Code
of Civil Procedure came up for disposal
before the learned Trial Court. This fact is
admitted to either of the parties that at the
time when the suit was decreed it had been
held by the Judge, Small Causes Court that
the tenant was in arrears of payment of rent
w.e.f. 1st of April, 2015 at the rate of
Rs.5,000/- per month. The rent due at the
time of filing of the SCC Suit was for five
months, and for fourteen months, at the
time when the Restoration Application was
moved by the petitioner. The petitioner
deposited Rs.10,100/- at the time of filing of
the application for recall and during the
pendency
of
her
application
for
determination of the correct decretal
amount, she deposited another Rs.75,000/-,
276 INDIAN LAW REPORTS ALLAHABAD SERIES
which was received by the husband of the
respondent No. 3.

22. The bonafide intent of the
tenant has undoubtedly been established in
making payments @ Rs.5,000/- per month
and also depositing some amount extra i.e.
to the tune of Rs.10,100/- from a perusal of
the papers brought on record. The intention
of adding the proviso to Section 17 in the
Provisional Small Causes Court Act, 1887
can be gathered from the language of the
proviso. It was added to avoid the
possibility of a litigant taking advantage of
Recall Application being moved without
first establishing his bonafide to pursue the
litigation further, and to avoid the decree
holder from being prejudiced due to the
pendency of the litigation.This Court,
therefore, feels it appropriate to set aside
the order passed by the two learned Courts
below with the observations that the tenant
cannot be non-suited on a hyper technical
ground when she had already deposited
Rs.85,100/-
during
the
pendency
of
application under Order 9 Rule 13 C.P.C."

29. Similarly, in this matter, certain
amount was accepted by the plaintiff in
cash, therefore, Court has granted one more
opportunity for compliance of Section 17
of Act, 1887, but in the present case, at no
point of time, plaintiff-respondent has
accepted any amount for compliance of
Section 17 of Act, 1887, therefore, this
judgment is also not helping the petitioner.

30. I have also perused the judgment
of Apex Court in the case of Kedarnath
(supra) as relied by the respondent, which
is squarely covered with the present
controversy. Relevant paragraph of the said
judgment is quoted hereinbelow:-

"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.

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 incompetent. It could not have
been entertained and allowed."

31. From perusal of the same, it is
clear
that
neither
application
was
5 All. Rajendra & Ors. Vs. Mohd. Shahid
277
accompanied by any deposit nor any
application has been filed for dispensing
with deposit and seeking leave of the Court
for furnishing such security.

32. In the present case too, neither
application of petitioner under Order IX
Rule 13 of CPC was accompanied
alongwith deposit required under Section
17 of Act, 1887 nor having any application
to dispense with the deposit of Section 17
of
Act,
1887.
Even
in
restoration
application, there is no such prayer to grant
permission to comply the Section 17 of
Act, 1887. Therefore, in light of aforesaid
judgment, petitioner is not entitled for any
relief to comply the provision of Section 17
of Act, 1887 after filing of application
under Order IX Rule 13 of CPC read with
151 CPC.

33. This Court is of the firm view that
it is not the case of part compliance,
therefore, benefit of judgments of Shyam
Kumar Gupta (Supra) and Smt. Sushma
Agarwal (Supra) cannot be given to
petitioner.

34. Both the Courts have considered
each and every aspects and rightly came to
the conclusion that petitioner has never
complied the provision of Section 17 of
Act, 1887. Courts have also rightly taken
view that in case, it is treating to be
compliance, the same is not full compliance
as amount so required has not been
deposited.

35. In view of above facts mentioned
hereinabove as well as law laid by this
Court, the writ petition lacks merit and is,
accordingly, dismissed.

36. No order as to costs.
----------
(2023) 5 ILRA 277
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.05.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters Under Article 227 No. 3631 of 2023
(CIVIL)

Rajendra & Ors. ...Petitioners
Versus
Mohd. Shahid ...Respondent

Counsel for the Petitioners:
Sri Piyush Shukla

Counsel for the Respondent:
Sri Manish Tandon, Sri Atul Dayal (Sr.
Advocate)

A. Tenancy Law - Ownership - Rent - U.P.
Urban Buildings (Regulation of Letting
Rent and Eviction) Act, 1972 - Sections
20(2)(a) & 34 - Slum Areas (Improvement
and Clearance) Act, 1962 - Section 23 -
Code of Civil Procedure: Order 6 Rule 14
and 15 - After receiving legal notice, it is
required
on
the
part
of
petitionerdefendant to raise objection about the
invalidity or infirmity of notice at the
earliest otherwise, it would deemed to
have been waved. (Para 20)

In the present case, the legal notice has details
of ownership, house number of property in
dispute alongwith boundary, which is not
disputed by the petitioner- defendant in its reply
dated 1.5.2014. The very same fact has been
mentioned in the plaint, which was also not
disputed by petitioner-defendant, in fact, there
was some dispute about the number of rooms in
tenancy for which amendment application
u/Order 6 Rule 17 of CPC has been filed in
written statement, which was rejected, but so
far as ownership is concerned, no application for
amendment in written statement has been filed.
(Para 19)