# Zeeshan Ahmad v. Mehboob Ahmad & Ors

- **Citation:** (2021) 2 ILRA 1
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-08
- **Case number:** Matters Under Article 227 No. 3403 of 2020
- **Bench:** Vivek Kumar Birla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/zeeshan-ahmad-v-mehboob-ahmad-ors-46717
- **Pages:** 4

## Headnote

A. Constitution of India,1950-Article 226
& Provincial Small Cause Court Act,1887Section 17-challenge to-maintainablity of
application-application u/s 17 of the Act
was filed along with the application under
O 9 Rule 13 CPC on the same date-Apex
Court held that it may be filed at any time
upto the time of presentation of the
application for setting aside ex parte
decree or for review and the Court may
treat it as a previous application-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 Courtapplication filed u/s 17 of the Act stands
restored.(Para 1 to 11)

The writ petition is allowed. ( E-5)

List of Cases cited:-

## Text

2 All. Zeeshan Ahmad Vs. Mehboob Ahmad & Ors.
1
(2021)02ILR A1
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.02.2021

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

Matters Under Article 227 No. 3403 of 2020

Zeeshan Ahmad ...Petitioner
Versus
Mehboob Ahmad & Ors. ...Respondents

Counsel for the Petitioner:
Sri Azim Ahmad Kazmi, Sri Mohd. Faiz

Counsel for the Respondents:
Sri Rashtrapati Khare, Sri Gaurav Khare

A. Constitution of India,1950-Article 226
& Provincial Small Cause Court Act,1887Section 17-challenge to-maintainablity of
application-application u/s 17 of the Act
was filed along with the application under
O 9 Rule 13 CPC on the same date-Apex
Court held that it may be filed at any time
upto the time of presentation of the
application for setting aside ex parte
decree or for review and the Court may
treat it as a previous application-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 Courtapplication filed u/s 17 of the Act stands
restored.(Para 1 to 11)

The writ petition is allowed. ( E-5)

List of Cases cited:-

1. Kedarnath Vs Mohan Lal Kesarwani &
ors.(2002) 1 ARC 186

2. Zulfiquar Hussain Vs Madan Gopal Chopra
(2012) 1 ARC 311

(Delivered by Hon'ble Vivek Kumar Birla, J.)

1. Heard learned counsel for the
petitioner and Sri Rashtrapati Khare,
learned counsel for the respondents and
perused the record.

2. Present petition has been filed
challenging the impugned order 14.5.2019
passed by the Judge, Small Causes Court,
Bareilly and the order dated 25.2.2020
passed by the revisional Court.

3. By the impugned order dated
14.5.2019 passed by the trial Court the
application filed under Section 17 of
Provincial Small Cause Court Act, 1887
(hereinafter referred to as the 'Act') has
been rejected on the ground that the
application was not maintainable in view of
proviso to Section 17 of the Act. Revision
filed against the same was also dismissed
by the lower revisional court.

4. Challenging the impugned orderd,
submission of learned counsel for the
petitioner is that the application under
Section 17 of the Act was filed along with
the application under Order 9 Rule 13 CPC
on the same date i.e. 5.10.2017. He submits
that there is no dispute for this fact. Placing
reliance on paragraph 9 of a decision of
Hon'ble Apex Court in Kedarnath vs.
Mohan Lal Kesarwani & Ors., 2002 (1)
ARC 186, it is submitted that the
application filed under Section 17 of the
Act along with application under Order 9
Rule 13 CPC would be maintainable as it
has been observed by Hon'ble Apex Court
that it may be filed at any time upto the
time of presentation of the application for
setting aside ex parte decree or for review
and the Court may treat it as a previous
application.
Paragraph
of
the
said
judgement in Kedar Nath (supra) is quoted
as under:
2 INDIAN LAW REPORTS ALLAHABAD SERIES

"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
judgement
must
be
accompanied by a deposit in the Court of
the amount due from the applicant under
the decree or in pursuance of the
judgement. 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
upto the time of presentation of the
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." (Emphasis supplied)

5. Per contra, Sri Rashtrapati Khare,
learned counsel for the respondents has
supported the impugned orders and submits
that application under Section 17 of the Act
must have been filed previously i.e. before
the filing of the application under Order 9
Rule 13 CPC.

6. Pure legal question is involved in
the present case and exchange of affidavits
is not necessary in this case as necessary
facts are not in dispute. With the consent of
parties present petition is being disposed of
at the admission stage itself.

7. I have considered the rival
submissions and perused the record.

8. It is not in dispute that both the
applications were filed on the same date i.e.
5.10.2017. In paragraph 9 of Kedarnath
(supra)
it
has
been
observed
that
application under Section 17 of the Act
must be on record at the time upto the time
of presentation of application for setting
aside decree and it is the discretion of the
court to treat it as previous application. It is
not in dispute that both the applications
were filed simultaneously. In Zulfiquar
Hussain vs. Madan Gopal Chopra, 2012
(1) ARC 311, this Court has held that the
application can be filed simultaneously and
would
be
maintainable.
Relevant
paragraphs 12, 13, 17, 18, 19, 20 are quoted
as above:

"12. The facts have been noticed
above in detail. They are not much in
dispute. There is no dispute that neither the
entire decretal amount nor the security in
lieu thereof was furnished by the tenant on
the date of filing of the application for
setting aside the ex parte decree. Security
with delay was furnished subsequently and
that too was short. Whether the proviso to
Section 17(1) of the Act is mandatory or
directory and whether the tenant has
complied with the said proviso or not are
the questions fall for determination in the
present revision.

13. The proviso provided that
along with the application for setting aside
the ex parte decree, besides other things,
the applicant is to deposit the amount due
from him under the decree or furnish such
security for the performance of the decree,
2 All. Zeeshan Ahmad Vs. Mehboob Ahmad & Ors.
3
as the court may, on a previous application
made by him in this behalf, have directed.
The proviso use the words "previous
application". It means the application for
permission to furnish security should be
earlier than the application for setting
aside the decree. An applicant can furnish
only such security as the court have
directed.

17. The aforesaid provision came
up for consideration before the Apex Court
in the case of Kedarnath (supra). The Apex
Court noticed the various decisions given
by the Allahabad High Court, which were
relied upon by the landlord-applicant
therein. It also noticed three decisions
which were relied upon by the defendanttenant therein. Out of three decisions relied
upon by the defendant-tenant, one was
Surendra Nath Mittal vs. Devanand Swarup
and Anr., AIR 1987 Allahabad 132, one
decision of Andhra Pradesh High Court
and one decision of Bombay High Court.
Apex Court has specifically laid down that
the decisions relied upon by the defendanttenant are single bench decisions and first
two decisions are more or less ad hoc
decisions, which do not notice the other
decisions and the general trend of judicial
opinion. The Apex Court specifically
observed that the view propounded therein
does not appeal to them and the third
decision of the Bombay High Court does
not lay down any general proposition of
law and proceeds on its own facts.

18. After doing so, it laid down
the law in para-8 of the report which is
reproduced
below,
for
the
sake
of
convenience:

"8. A bare reading of the
provision shows that the legislatures 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 or small cause 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 upto 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."

19. The above decision of Apex
Court leaves no room for doubt.

(1)that the proviso is mandatory

(2)the application seeking to set
aside decree or review must be accompany
by a deposit of decretal amount in court

(3)the
application
for
dispensation of deposit can be filed upto
the date of filing the application for setting
aside the decree

(4)the proviso does not provide
for the extension of time

20. Subsequently, this Court in
the case of Shyam Shanker and others vs.
Sahu Sarvesh Kumar and others, 2008 (3)
ARC
115,
followed
the
aforestated
judgment of the Apex Court and has held
that deposit of the decretal amount can be
dispensed with by court if the application is
4 INDIAN LAW REPORTS ALLAHABAD SERIES
accompanied along with the application
filed under Order 9 Rule 13 of the C.P.C. A
subsequent application for permission to
furnish the security cannot be entertained."

 (Emphasis supplied)

9. In such view of the matter, the orders
impugned herein are not sustainable in the
eye of law as admittedly both the applications
as mentioned above were filed on the same
date i.e. 5.10.2017 and should have been
considered by the trial court on its own merit
and such application filed under Section 17 of
the Act could not have been rejected as not
maintainable.

10.

For
the
reasons
discussed
hereinabove, present petition stands allowed.
The impugned orders dated 25.2.2020 and
14.5.2019 are set aside and the application
filed under Section 17 of the Act stands
restored to its number and shall be considered
and decided by the court below on its own
merit, preferably within a period of one
month from the date of production of a selfverified copy of this order, which can be
verified from the official website of this
Court.

11. It is made clear that this Court has
not considered the merits of the application
filed either under Section 17 of the Act or
application filed under Order 9 Rule 13 CPC.

No order as to costs.
----------
(2021)02ILR A4
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.02.2021,
05.01.2021, 19.01.2021

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE SHAMIM AHMED, J.

Habeas Corpus Writ Petition No. 1 of 2021

Shivam Keshari & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ran Vijay Singh

Counsel for the Respondents:
G.A.

A. Constitution of India, 1950-Article 226 -
Indian
Penal
Code,
1860-Sections
302,201-the
police
encountered
the
petiitoner's brother and his brother's
friend to save the real culprits and SSP
also misdirect the investigation
-the
respondents did not take any action
despite court's order-even against the
persons who were named in various
applications moved by the petitioner-both
the deceased's body was recovered in
mirzapur district other than Varanasirespondent entered missing report in G.D.
after the order passed by the Court, no
investigation or action taken against the
two culprits-conduct of the respondents
shows
not
only
deliberate
gross
disobedience and disrespect to the order
of the court but also intentional breach of
fundamental rights-respondents including
the SIT transfer investigation to the CBI
for
fair,
impartial,expeditious
and
according to law investigation.(Para 1 to
29)

The petition is allowed. (E-5)

List of Cases cited:-

1. St. of W. B. & ors. Vs Committee for
Protection of Democratic Rights, W. B. &
ors.,(2010) 3 SCC 571

2. Ashok Kumar Todi Vs Kishwar Jahan &
ors.,(2011) 3 SCC 758

3. K.V. Rajendran Vs SSP Vs CBCID , South
Zone, Chennai & ors.,(2013) 12 SCC 480