# SUBODH KUMAR v. SHAMIM AHMED

- **Citation:** [2021] 1 S.C.R. 1111
- **Court:** Supreme Court of India
- **Decided:** 2021-03-03
- **Case number:** Civil Appeal Nos. 802-803 of 2021
- **Bench:** Ashok Bhushan, R. Subhash Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/subodh-kumar-v-shamim-ahmed-35419
- **Pages:** 24

## Headnote

Provincial Small Cause Courts Act, 1887 - s.17 - U.P. Urban
Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - s.
30(2) - Code of Civil Procedure, 1908 - Or. 9, R.13 - In the year
1994 a suit was filed by the appellant-landlord for possession, rent
and mesne profits - Tenant failed to file written statement - The
Court passed an order to proceed ex-parte - Thereafter, the tenant
filed many applications, which included application u/s. 30(2) of
the 1972 Act and deposited rent on various occasions from the year
1997 to 1998 - Ex-parte judgment was passed and case of the
landlord was allowed - When appellant-landlord filed an
application for execution of ex-parte judgment, the tenant filed an
application u/Or.9, R.13 with s.5 of the Limitation Act - No deposit
was made u/s. 17 of the 1887 Act - Tenant pleaded that amount
deposited u/s.30(2) of the 1972 Act may be treated as amount
deposited u/s. 17 of the 1887 Act - The trial Court by order dated
19.04.2007 rejected application u/Or.9, R.13 and s.5 of the
Limitation Act - Revision against the said order was also rejected
by the District Court - Respondent-tenant filed writ petition - The
High Court allowed the writ petition by order dated 13.12.2018
and remanded the matter back to the trial Court for reconsideration
of tenant's application u/Or.9, R.13 and s.5 of the Limitation Act -
Aggrieved, the appellant-landlord filed SLP and the same was
dismissed and withdrawn - After this order, the review application
was filed before the High Court and same was rejected on
24.05.2019 - Before the Supreme Court, the respondent no.1-tenant
has filed appeal against the judgment of the High Court dated
13.12.2018 and the order dated 24.05.2019 - Held: The proviso to
s.17 of the 1887 Act, gives two options to an applicant against
whom an ex-parte decree has been passed or who applied for review
of the judgment, i.e., (a) deposit in the Court the amount due from
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him under the decree or in pursuance of the decree; (b) give such
security for the performance of the decree or compliance with the
judgment as the Court made on the previous application made by
him in this behalf directed - In the instant case, where the tenant
has filed an application u/Or.9 R.13 on to recall the ex-parte decree
- There is no reference of any previous application praying the
Court to permit the tenant to give security to satisfy the ex-parte
decree - The application was not accompanied by the deposit of
the amount due from the tenant under the decree - The said
application, thus, was not in accordance with proviso to s.17 - When
the condition precedent for presenting the application u/Or.9 R.13
was not fulfilled, the application u/Or.9 R.13 was rightly rejected -
As far as amount deposited u/s.30(2) of the 1972 Act is concerned,
on the date when application u/Or.9, R.13 was filed, total deposit
made by the tenant u/s. 30(2) was only Rs.17,550/- whereas the
amount due as per execution application was Rs.21,660/- -
Therefore, the tenant had not even deposited u/s.30(2) the total
amount due - Further, the deposit of rent u/s. 30(2) the 1972 Act in
the present case can not be treated to be deposit for the purposes of
proviso u/s. 17 of the Act, 1887 - Thus, judgment dated 13.12.2018
as well as the order dated 24.05.2019 rejecting the review
application are set aside - The order of the trial Court dated
19.04.2007 rejecting the application u/Or.9 R. 13 of the respondent
is upheld - The Executing Court directed to execute the decree and
put the appellant in possession.
Allowing the appeals, the Court
HELD: 1. Proviso to Section 17 of Provincial Small Cause
Courts Act, 1887 has been engrafted with the object that
unscrupulous tenants who do not appear in the Court in the suit
proceedings should not be allowed to file the application to recall
ex-parte decree unless they deposit the entire amount or give
security to the Court for compliance of the decr

## Text

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 [2021] 1 S.C.R. 1111
1111
SUBODH KUMAR
v.
SHAMIM AHMED
(Civil Appeal Nos. 802-803 of 2021)
MARCH 03, 2021
[ASHOK BHUSHAN AND R. SUBHASH REDDY, JJ.]
Provincial Small Cause Courts Act, 1887 - s.17 - U.P. Urban
Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - s.
30(2) - Code of Civil Procedure, 1908 - Or. 9, R.13 - In the year
1994 a suit was filed by the appellant-landlord for possession, rent
and mesne profits - Tenant failed to file written statement - The
Court passed an order to proceed ex-parte - Thereafter, the tenant
filed many applications, which included application u/s. 30(2) of
the 1972 Act and deposited rent on various occasions from the year
1997 to 1998 - Ex-parte judgment was passed and case of the
landlord was allowed - When appellant-landlord filed an
application for execution of ex-parte judgment, the tenant filed an
application u/Or.9, R.13 with s.5 of the Limitation Act - No deposit
was made u/s. 17 of the 1887 Act - Tenant pleaded that amount
deposited u/s.30(2) of the 1972 Act may be treated as amount
deposited u/s. 17 of the 1887 Act - The trial Court by order dated
19.04.2007 rejected application u/Or.9, R.13 and s.5 of the
Limitation Act - Revision against the said order was also rejected
by the District Court - Respondent-tenant filed writ petition - The
High Court allowed the writ petition by order dated 13.12.2018
and remanded the matter back to the trial Court for reconsideration
of tenant's application u/Or.9, R.13 and s.5 of the Limitation Act -
Aggrieved, the appellant-landlord filed SLP and the same was
dismissed and withdrawn - After this order, the review application
was filed before the High Court and same was rejected on
24.05.2019 - Before the Supreme Court, the respondent no.1-tenant
has filed appeal against the judgment of the High Court dated
13.12.2018 and the order dated 24.05.2019 - Held: The proviso to
s.17 of the 1887 Act, gives two options to an applicant against
whom an ex-parte decree has been passed or who applied for review
of the judgment, i.e., (a) deposit in the Court the amount due from
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him under the decree or in pursuance of the decree; (b) give such
security for the performance of the decree or compliance with the
judgment as the Court made on the previous application made by
him in this behalf directed - In the instant case, where the tenant
has filed an application u/Or.9 R.13 on to recall the ex-parte decree
- There is no reference of any previous application praying the
Court to permit the tenant to give security to satisfy the ex-parte
decree - The application was not accompanied by the deposit of
the amount due from the tenant under the decree - The said
application, thus, was not in accordance with proviso to s.17 - When
the condition precedent for presenting the application u/Or.9 R.13
was not fulfilled, the application u/Or.9 R.13 was rightly rejected -
As far as amount deposited u/s.30(2) of the 1972 Act is concerned,
on the date when application u/Or.9, R.13 was filed, total deposit
made by the tenant u/s. 30(2) was only Rs.17,550/- whereas the
amount due as per execution application was Rs.21,660/- -
Therefore, the tenant had not even deposited u/s.30(2) the total
amount due - Further, the deposit of rent u/s. 30(2) the 1972 Act in
the present case can not be treated to be deposit for the purposes of
proviso u/s. 17 of the Act, 1887 - Thus, judgment dated 13.12.2018
as well as the order dated 24.05.2019 rejecting the review
application are set aside - The order of the trial Court dated
19.04.2007 rejecting the application u/Or.9 R. 13 of the respondent
is upheld - The Executing Court directed to execute the decree and
put the appellant in possession.
Allowing the appeals, the Court
HELD: 1. Proviso to Section 17 of Provincial Small Cause
Courts Act, 1887 has been engrafted with the object that
unscrupulous tenants who do not appear in the Court in the suit
proceedings should not be allowed to file the application to recall
ex-parte decree unless they deposit the entire amount or give
security to the Court for compliance of the decree. The proviso
is to take care of those tenants who deliberately do not appear in
the suit neccesiating the Court to pass ex-parte decree. The object
is to protect the landlord and to ensure that the decree passed is
satisfied by the tenant, in event, the application under Order 9
Rule 13 is ultimately rejected. Proviso gives two options to an
applicant against whom an ex-parte decree has been passed or
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who applied for review of the judgment, i.e., (a) deposit in the
Court the amount due from him under the decree or in pursuance
of the decree; (b) give such security for the performance of the
decree or compliance with the judgment as the Court made on
the previous application made by him in this behalf directed. Thus,
requirement of the deposit in the court the entire amount can be
waived only when the Court on the previous application directs
the tenant to give such security for performance of the decree or
compliance with the judgment. The application seeking waiver
from deposit has been mentioned as "a previous application" i.e.
previous to the application filed under Order 9 Rule 13.
[Para 22][1121-G-H; 1122-A-C]
2. The present is a case where the tenant has filed an
application under Order 9 Rule 13 on 25.08.1998 to recall the
ex-parte decree dated 31.03.1998. There is no reference of any
previous application praying the Court to permit the tenant to
give security to satisfy the ex-parte decree. The application dated
25.08.1998 was not accompanied by the deposit of the amount
due from the tenant under the decree dated 31.03.1998. The
application dated 25.08.1998, thus, was not in accordance with
proviso to Section 17. When the condition precedent for
presenting the application under Order 9 Rule 13 was not fulfilled,
the application under Order 9 Rule 13 filed by the tenant
respondent did not deserve any consideration and had rightly
been rejected. [Para 23][1122-D-E]
3. This Court may also notice submission of the the
appellant, that the deposit under Section 30(2) of the Act No.13
of 1972 which was due on the date of filing of the application
under Order 9 Rule 13 CPC was not the deposit of the entire
amount. In the execution application filed on 27.07.1998 by the
landlord to execute the decree dated 31.03.1998, the amount
which was claimed was Rs.21,660/- which was due till then.
[Para 30][1126-B-C]
4. The application under Order 9 Rule 13 CPC was filed on
25.08.1998, i.e., subsequent to filing of the execution application,
thus, at least the amount of Rs.21,660/- was due. The tenant
respondent has made a deposit under Section 30(2) in July, 1997
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of Rs.16,800/- and again Rs.750/- on 18.10.1997 which was rent
from 30.06.1997 to 30.11.1997. Thus, on the date when the
application was filed under Order 9 Rule 13, total deposit made
by the tenant under Section 30(2) was only Rs.17,550/- whereas
the amount due as per execution application was Rs.21,660/-.
It was only on 25.11.1998, i.e., much after filing of the application
under Order 9 Rule 13, the tenant deposited amount of
Rs.1,950/- as a rent from 30.11.1997 to 31.12.1998. Thus, even
according to the own case of the respondent tenant on the date
when application under Order 9 Rule 13 was filed, i.e., 25.08.1998,
the tenant had not deposited under Section 30(2) the total amount
due, thus, by no stretch of imagination the tenant could have
claimed compliance of proviso to Section 17 of Act, 1887.
[Para 31][1126-D-E]
5. When the plaintiff had claimed exemption from the
operation of the Act No. 13 of 1972, it was specific pleading as
noted above, how deposit can be made under Section 30 of the
Act by the tenant respondent. Section 2 begin with the expression
that 'Nothing in this Act shall apply'. When there is exemption
from the applicability of the Act No.13 of 1972 as pleaded by the
plaintiff, Section 30 of the Act shall also not be applicable. When
Section 30 itself is not applicable to the building, the deposit
claimed to be made under Section 30(2) is wholly irrelevant, for
any purposes including for purposes of proviso to Section 17 of
Act, 1887. [Para 35][1127-H; 1128-A-B]
6. Therefore, 1) In the application filed by the tenant on
25.08.1998 under Order 9 Rule 13, there was no compliance of
Section 17 of 1887 Act and the application was incompetent;
2) The respondent-tenant had not deposited the entire amount
due on 25.08.1998 even under Section 30(2) of Act No.13 of 1972;
3) The deposit of rent under Section 30(2) of the Act No.13 of
1972 in the present case cannot be treated to be deposit for the
purposes of proviso under Section 17 of the Act, 1887.
[Para 42][1131-C-E]
7. The tenant-respondent has not made out any sufficient
ground to allow the application under Order 9 Rule 13 and the
High Court committed error in interfering with the order of the
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trial court rejecting such application which was also confirmed by
the District Judge. [Para 50][1133-B-C]
8. The trial court has rejected the application of tenant
under Order 9 Rule 13 not adopting any hyper-technical and
pedantic approach rather on the finding that there was
non-compliance of proviso to Section 17 of the Act, 1887, hence,
the application deserves to be rejected. Requirement under
proviso to Section 17 can neither be said to be hypertechnical
nor pedantic but the same was the requirement of law and
condition precedent for maintainability of application under Order
9 Rule 13. The High Court is not right in its view that trial court
and Revisional Court has taken hypertechnical and pedantic
approach while considering the application under Order 9 Rule
13 of CPC and Section 5 of the Limitation Act. [Paras 54 and
55][1133-G-H; 1134-A-C]
Kedarnath versus Mohan Lal Kesarwari and Others
(2002) 2 SCC 16 : [2002] 1 SCR 144; Prem Chandra
Mishra versus IInd Additional District Judge, Etah, Writ
Petition No. 12103 of 1996 decided on 11.09.2008
reported in (2008) 9 ADJ 13; Kailash versus Nanku
and Others, reported in (2005) 4 SCC 480 : [2005] 3
SCR 289 - referred to.
Case Law Reference
[2002] 1 SCR 144
referred to
para 24
(2008) 9 ADJ 13
referred to
para 36
[2005] 3 SCR 289
referred to
para 51
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 802803 of 2021.
From the Judgment and Order dated 13.12.2018 and 24.05.2019
of the High Court of Uttarakhand at Nainital in Writ Petition (M.S.) No.
418 of 2008 and M.C.C. No. 437 of 2019 in Writ Petition (M.S.) No.
418 of 2008 respectively.
R.B. Singhal, Sr. Adv., Anupam Mishra, Adv. for the Appellant.
Dr. Sumant Bharadwaj, Ms. Mridula Ray Bharadwaj, Advs. for
the Respondent.
SUBODH KUMAR v. SHAMIM AHMED
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The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. Leave granted
2. This appeal has been filed against the judgment of the High
Court of Uttarakhand dated 13.12.2018 allowing the Writ Petition (M.S.)
No.418 of 2008 filed by respondent No.1 as well as the order dated
24.05.2019 rejecting the Review Petition filed by the appellant to review
the judgment dated 13.12.2018.
3. The facts of the case giving rise to this appeal, which are
relevant for deciding the issues raised, need to be carefully noticed. The
High Court in the impugned judgment although has noted few facts but
certain relevant facts have been missed by the High Court which have
bearing on the issues which had arisen before the High Court.
4. The facts of any case are the foundation on which the dispute
between the parties arises. The arguments are built by the counsel for
the parties in reference to the foundational facts for applying the legal
principles to decide the dispute. A clear grasp of foundational facts are
essential. The law is applied on facts and when essential facts are missed,
mis-application of law is bound to happen. We may recall prophetic words
of Mr. Justice Cardozo when he said: -
"...More and more we lawyers are awakening to a perception of
the truth what divides and distracts us in the solution of a legal
problem is not so much uncertainty about the law as uncertainty
about the facts - the facts which generate the law. Let the facts
be known as they are, and the law will sprout from the seed and
turn its branches toward the light."
5. The appellant herein shall be referred as 'landlord' whereas
the respondent No.1 Shamim Ahmed as 'tenant'. Dispute relates to a
shop being shop No.39(29) situated in Compound No.3, Civil Lines,
Roorkee, District Haridwar. The respondent was inducted as tenant at
Rs.150/- per month by predecessor-in-title of the landlord. The landlord
purchased the shop in question by sale deed on 30.01.1991. The S.S.C
case No.4 of 1994 was filed by the landlord on 18.03.1994 claiming
possession, rent and mesne profit. The landlord's case was that the notice
was given on 24.12.1993 demanding the amount of rent, due rent, profit
etc. Thereafter the S.C.C. Case No.4 of 1994 was filed in the Court of
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Additional Civil Judge, Senior Division, Roorkee. On 14.07.1994, the
tenant was served summons. He prayed time to file a written Statement
till 24.08.1994. The tenant filed an application under Section 10 CPC to
stay the suit as well as the application under Order VII Rule 11 CPC.
Both applications were rejected and the Court allowed fifteen days time
to file a written statement and fixed 16.10.1995 for hearing. On
16.10.1995, the tenant again took time but did not file a written statement.
Several other opportunities were given to the tenant to file a written
statement in which he failed. On 24.02.1997, Court passed an order to
proceed ex-parte. On 18.03.1997, the plaintiff- landlord was permitted
to give ex-parte evidence. The application 44Ga was filed by the tenant
to recall the orders dated 24.02.1997 and 18.03.1997. On 16.05.1997,
the application 44Ga was rejected observing that the defendant wants to
delay the case regularly because he is a tenant and getting the benefit of
property. The application was found to be mala fide.
6. On 23.05.1997, the tenant filed an application under Section
30(2) of the U.P. Urban Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972, to deposit the rent. The application was allowed on
23.05.1997 by the Court observing that the plaintiff may deposit the
amount on his own risk. On 07.07.1997, the amount of rent from
01.03.1988 to 30.06.1997 amounting to Rs.16,800/- was deposited by
the tenant under Section 30(2).
7. Against the Order dated 16.05.1997, a revision was filed by the
tenant before the District Judge, which too was rejected on 22.08.1997.
On 18.10.1997, the tenant further deposited Rs.750/- as rent from
30.06.1997 to 30.11.1997.
8. The S.C.C. case No.4 of 1994 filed by the landlord was allowed
by ex-parte judgement dated 31.03.1998. On 27.07.1998, the tenant had
filed an application for execution of ex-parte decree dated 31.03.1998
claiming a total amount of Rs.21,660/-. The tenant thereafter on
25.08.1998 filed an application under Order 9 Rule 13 CPC along with
application under Section 5 of Limitation Act for condoning the delay to
recall the ex-parte decree dated 31.03.1998. Along with application dated
25.08.1998 filed under Order 9 Rule 13 CPC, no deposit was made by
the tenant as required by Section 17 of the Provincial Small Cause Courts
Act, 1887 (hereinafter referred to as "Act,1887").
9. On 25.11.1998, i.e., after filing the application under Order 9
Rule 13, the tenant made further deposit of Rs.1950/- as a rent from
SUBODH KUMAR v. SHAMIM AHMED
[ASHOK BHUSHAN, J.]
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30.11.1997 to 31.12.1998. On 27.07.2002, the application was filed by
the tenant praying that amount deposited under Section 30(2) of U.P.
Act No.13 of 1972 be presumed to be deposited under Section 17 of the
Act, 1887, and the tenant be granted benefit of Section 17.
10. The appellant landlord filed a detailed objection dated
07.08.2002 opposing the application dated 27.07.2002. The trial court
vide order dated 19.04.2007 rejected the application filed by the tenant
under Order 9 Rule 13 and Section 5 of the Limitation Act. A revision
was filed by the tenant against the order dated 19.04.2007 before the
District Judge, who rejected the same by order dated 23.02.2008.
Aggrieved by the order dated 19.04.2007 of the trial court as well as
order dated 23.02.2008 of the District Judge rejecting the revision, a
Writ Petition No.418 of 2008 was filed by the tenant in the High Court.
11. The Writ Petition was allowed by the High Court by the
impugned judgment dated 13.12.2018. The High Court set aside the order
dated 19.04.2007 of the trial court and 23.02.2008 of the Revisional
Court and remanded the matter back to the trial court for reconsideration
of tenant's application under Order 9 Rule 13 CPC and Section 5 of the
Limitation Act in accordance with law. The appellant-landlord aggrieved
by the judgment of the High Court dated 13.12.2018 filed a special leave
petition in this Court, being SLP(Civil) Diary No.15791 of 2019 which
was dismissed and withdrawn by the landlord with liberty to file Review
Petition before the High Court. Liberty to come back was also granted
by this Court vide Order dated 10.05.2019. After the Order of this Court
dated 10.05.2019, a review application was filed by the appellant-landlord
before the High Court, which too has been rejected on 24.05.2019. The
appellant- landlord aggrieved by the aforesaid judgments dated 13.12.2018
and 24.05.2019 of the High Court has come up in this appeal.
12. After the judgment of the High Court dated 13.12.2018, the
trial court in pursuance of the remand order has allowed the application
under Order 9 Rule 13 CPC and Section 5 of the Limitation Act by order
dated 24.05.2019.
13. We have heard Shri R.B.Singhal, learned senior counsel
appearing for the appellant and Dr. Sumant Bharadwaj, learned counsel
appearing for the respondent.
14. Shri R.B. Singhal, learned senior counsel for the appellant
submitted that application of tenant under Order 9 Rule 13 was rightly
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rejected for non-compliance of mandatory provisions of Section 17
Proviso of the Act, 1887. It is submitted that as per proviso to Section
17, the tenant was obliged to deposit the decretal amount due on the
date of filing the application which has not been complied with. The
application has been rightly rejected by the trial court. He has further
submitted that the application to give the benefit of the amount deposited
under Section 30(2) of UP Act No.13 of 1972 was filed by the tenant on
27.07.2002 that is after four years which could not have enured to the
benefit of the tenant. The deposit made under Section 30(2) of the U.P.
Act No.13 of 1972 was in the name of the appellant as well as the
respondent No.5, hence, the deposit also was not relevant for giving
benefit to the tenant under Section 17 proviso. The deposit under Section
30(2) being in joint name which could not be withdrawn by landlordappellant alone, such deposit cannot help the respondent tenant for
compliance of Section 17 proviso. Even the deposits made under Section
30(2) was not the deposit of the total amount due on the date of filing the
application under Order 9 Rule 13.
15. It is submitted that 25.08.1998 is the date of presenting
application under Order 9 Rule 13 and the tenant had deposited only the
amount of Rs.17,550/- which was not the entire decretal amount payable
by tenant. The execution-application has already been filed by the landlord
appellant on 27.07.1998 in which the total decretal amount claimed was
Rs.21,660/-. Thus, even assuming without admitting that amount under
Section 30(2) can be adjusted, the amount being not total decretal amount,
benefit under Section 17 proviso could not be extended to the tenant and
the application was rightly rejected. It is further submitted that there
was no ground for allowing the application under Order 9 Rule 13 since
the order to proceed ex-parte against the tenant was unsuccessfully
challenged by the tenant before the Revisional Court. There was no
genuine ground for allowing the application under Order 9 Rule 13. The
High Court committed error in interfering with the order of the trial
court as well as the Revisional Court.
16. Dr. Sumant Bharadwaj, appearing for the respondent submits
that the amount deposited under Section 30(2) of U.P.Act No.13 of
1972 was entitled to be given credit for the purposes of proviso to Section
17 of Act, 1887 and the High Court has rightly taken the view that the
amount up to 31.12.1998 having already been deposited under Section
30(2), the application under Order 9 Rule 13 could not have been rejected
for non-compliance of proviso to Section 17.
SUBODH KUMAR v. SHAMIM AHMED
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17. It is submitted that the High Court has rightly taken the view
that the Court below had adopted hypertechnical and pedantic approach
while considering the application under Order 9 Rule 13 and Section 5 of
the Limitation Act. It is submitted that the tenant had deposited the entire
decretal amount under Section 30(2) which was due at the time of filing
application under Order 9 Rule 13. The application filed by the tenant
was wrongly rejected by the trial court as well as the Revisional Court.
The High Court has done substantial justice in allowing the application
under Order 9 Rule 13.
18. We have considered the submissions of the learned counsel
for the parties and have perused the record.
19. From the submissions of the learned counsel for the parties
and materials on record, following issues arise for consideration in this
appeal:-
1)
Whether in the application filed by the respondent-tenant
under Order 9 Rule 13, CPC on 25.08.1998, the requirements
as contained in Proviso to Section 17 of the Provincial Small
Cause Courts Act, 1887, were complied with?
2)
Whether the respondent-tenant had deposited the entire
amount due on 25.08.1998 under Section 30(2) of U.P. Act
No.13 of 1972?
3)
Whether the deposit of rent under Section 30(2) of the U.P.
Act No.13 of 1972 in the present case can be treated to be
deposited under proviso to Section 17 of Act, 1887?
4)
Whether the respondent-tenant has made sufficient ground
to allow the application filed under Order 9 Rule 13 CPC
dated 25.08.1998?
5)
Whether the High Court is right in its view that the trial
court and the Revisional Court has taken a hyper-technical
and pedantic approach while considering the application
under Order 9 Rule 13 CPC and Section 5 of the Limitation
Act filed by the respondent?
The first, second and third questions being interrelated are taken
together.
20. The S.C.C. suit No.4 of 1994 was filed by the appellant landlord
in March, 1994. The plaintiff's case was that he had purchased the
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property by the sale deed dated 30.01.1991 after due permission from
the District Judge, Haridwar. The plaintiff claimed to be owner of the
property w.e.f. 30.01.1991. Defendant Nos.2 to 5 had also joined the
plaintiff in the notice given to the respondent terminating the tenancy.
There was categorical pleading in the plaint that the U.P. Act No.13 of
1972 is not applicable since the subject property was recent construction.
It is useful to refer to the pleadings in paragraph 5 of the plaint which is
to the following effect:-
"5. That U.P. Act 13 of 1972 is not applicable to the disputed
property. It is the recent construction and is subject to assessment
by Municipal Board, Roorkee and the first such assessment
thereon came into effect from 01.04.1984."
21. We may notice Section 17 and its proviso, compliance of which
was required by the tenant- respondent while filing application under
Order 9 Rule 13 CPC. Section 17 is as follows:-
"17.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 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 sub-section (1), the security may be realized in manner provided
by Section 145 of the Code of Civil Procedure, 1908 (5 of 1908)."
22. Proviso to Section 17 has been engrafted with the object that
unscrupulous tenants who do not appear in the Court in the suit
proceedings should not be allowed to file the application to recall exparte decree unless they deposit the entire amount or give security to
the Court for compliance of the decree. The proviso is to take care of
those tenants who deliberately do not appear in the suit neccesiating the
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Court to pass ex-parte decree. The object is to protect the landlord and
to ensure that the decree passed is satisfied by the tenant, in event, the
application under Order 9 Rule 13 is ultimately rejected. Proviso gives
two options to an applicant against whom an ex-parte decree has been
passed or who applied for review of the judgment, i.e., (a) deposit in the
Court the amount due from him under the decree or in pursuance of the
decree; (b) give such security for the performance of the decree or
compliance with the judgment as the Court made on the previous
application made by him in this behalf directed. Thus, requirement of the
deposit in the court the entire amount can be waived only when the
Court on the previous application directs the tenant to give such security
for performance of the decree or compliance with the judgment. The
application seeking waiver from deposit has been mentioned as "a previous
application" i.e. previous to the application filed under Order 9 Rule 13.
23. The present is a case where the tenant has filed an application
under Order 9 Rule 13 on 25.08.1998 to recall the ex-parte decree dated
31.03.1998. There is no reference of any previous application praying
the Court to permit the tenant to give security to satisfy the ex-parte
decree. The application dated 25.08.1998 was not accompanied by the
deposit of the amount due from the tenant under the decree dated
31.03.1998. The application dated 25.08.1998, thus, was not in accordance
with proviso to Section 17. When the condition precedent for presenting
the application under Order 9 Rule 13 was not fulfilled, the application
under Order 9 Rule 13 filed by the tenant respondent did not deserve
any consideration and had rightly been rejected.
24. This Court had occasion to consider Section 17(1) proviso of
the Act, 1887, and application filed under Order 9 Rule 13 in Kedarnath
versus Mohan Lal Kesarwari and others, (2002) 2 SCC 16. In the
above case, a suit was filed by the landlord for recovery of arrears of
rent and eviction under Section 20(2) of Act No.13 of 1972 which was
triable by the Court of Small Causes. The suit was decreed ex-parte.
When the decree was put in execution, the tenant moved application
under Order 9 Rule 13 seeking setting aside ex-parte decree. Neither
the amount due on the decree was deposited nor an application was
filed seeking direction from the Court to give security. The facts have
been noted in paragraph 1 of the judgment, which is to the following
effect:-
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"1.The appellant-landlord filed a suit for recovery of arrears of
rent and for eviction against the respondent-tenants on the ground
available under clause (a) of sub-section (2) of Section 20 of the
U.P.Urban Buildings (Regulation of Letting, Rent and Eviction)
Act, 1972, hereinafter "the U.P.Urban Buildings Act" for short. A
suit of the nature filed by the appellant being triable by a Court of
Small Causes, as provided by the U.P. Civil Laws Amendment
Act, 1972 was filed in the Court of Small Causes, Allahabad. On
09.08.1996, the suit came to be decreed ex parte. The decree
directed the respondent-tenants to pay an amount of Rs.8500 as
pre-suit arrears of rent and a further amount calculated at the
rate of Rs.250 per month from the date of institution of suit to the
date of recovery of possession. A decree for eviction was also
passed. The decree was put to execution and on 21.02.1998 the
decree-holder obtained possession over the suit premises with
police help. The Court Amin certified the delivery of possession
to the executing court. On 26.02.1998, the respondent-tenants
moved an application under Order 9 Rule 13 CPC seeking setting
aside of the ex parte decree. Neither was the amount due under
the decree deposited nor was an application filed seeking direction
of the Court to give security for the performance of the decree in
lieu of depositing the decretal amount. On 14.10.1998, arguments
were heard on the application under Order 9 Rule 13 CPC. The
Court appointed 16.10.1998 for orders."
25. The trial court had rejected the application forming an opinion
that application under Order 9 Rule 13 has been filed without complying
with the proviso to Section 17 which application was not maintainable.
In a revision filed before the District Judge, the delay was condoned and
the District Judge directed the trial court to accept security as proposed
and decide the application under Order 9 Rule 13 on merits. The writ
petition before the High Court by the landlord was dismissed, thereafter
the matter had come to this Court.
26. This Court, after noticing Section 17, has extracted the
statement of objects and reasons for 1935 amendment in Section 17.
Following was observed in paragraph 5 of the judgment: -
"5...It is relevant to note that the proviso to sub-section (1) of
Section 17 has undergone a material change through an
amendment brought in by Act 9 of 1935. Earlier these were the
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words - "security to the satisfaction of the court for the
performance of the decree or compliance with the judgment, as
the court may direct" whic have been deleted and substituted by
the present words - "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".
The Statement of Objects and Reasons for the 1935 amendment
was set out as under:
"The Act is designed to remove certain doubts which have arisen
in the interpretation of the proviso to sub-section (1) of Section 17
of the Provincial Small Cause Courts Act, 1887. As the section
stands, an applicant is required to give security to the satisfaction
of the court at the time of presenting his application. It follows
that, in order to ascertain what security satisfies the court, the
applicant must already have made an application in that behalf.
There is some doubt whether the words 'as the court may direct'
apply to the deposit of the whole decretal amount as well as to the
giving of approved security. The Act is intended to make it clear
that the preliminary application to ascertin what security will satisfy
the court must be made and decided before the substantive
application for the order to set aside the decree, and that it always
is open to the applicant to adopt the alternative course of depositing
the total decretal amount.(Vide Statement of Objects and Reasons,
Gazette of India, 1935, Part V, p.90)."
27. This Court has held that compliance of the proviso to Section
17 is mandatory for making application under Order 9 Rule 13. In
paragraph 8 and 9, following was laid down: -
"8. A bare reading of the provision shows that the legislature has
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
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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.
9. 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."
28. This Court held that the trial court had rightly rejected the
application which was not in compliance with Section 17 and both the
District Judge and the High Court committed error in interfering with
the order of the trial court. In paragraph 10, following was held: -
"10. 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 respondents 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."
29. On the date when the application was filed under Order 9
Rule 13, i.e., 25.08.1998, neither any deposit was made by the tenant
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nor there was any previous application seeking permission of the Court
to give security. Hence, there being non-compliance of proviso to Section
17, application was liable to be rejected and the trial court vide its order
dated 19.04.2007 had rightly rejected the application under Order 9 Rule
13.
30. We may also notice one more submission of the learned counsel
for the appellant, that the deposit under Section 30(2) of the Act No.13
of 1972 which was due on the date of filing of the application under
Order 9 Rule 13 CPC was not the deposit of the entire amount. In the
execution application filed on 27.07.1998 by the landlord to execute
the decree dated 31.03.1998, the amount which was claimed was
Rs.21,660/- which was due till then.
31. The application under Order 9 Rule 13 CPC was filed on
25.08.1998, i.e., subsequent to filing of the execution application, thus, at
least the amount of Rs.21,660/- was due. The tenant respondent has
made a deposit under Section 30(2) in July, 1997 of Rs.16,800/- and
again Rs.750/- on 18.10.1997 which was rent from 30.06.1997 to
30.11.1997. Thus, on the date when the application was filed under Order
9 Rule 13, total deposit made by the tenant under Section 30(2) was only
Rs.17,550/- whereas the amount due as per execution application was
Rs.21,660/-. It was only on 25.11.1998, i.e., much after filing of the
application under Order 9 Rule 13, the tenant deposited amount of
Rs.1,950/- as a rent from 30.11.1997 to 31.12.1998. Thus, even according
to the own case of the respondent tenant on the date when application
under Order 9 Rule 13 was filed, i.e., 25.08.1998, the tenant had not
deposited under Section 30(2) the total amount due, thus, by no stretch
of imagination the tenant could have claimed compliance of proviso to
Section 17 of Act, 1887.
32. Now, we may proceed to consider as to whether deposit under
Section 30(2) in the facts of the present case could have enured to the
benefit of tenant for the purposes of deposit under Section 17 of Act,
1887. The deposit was made on an applicaion under Section 30(2) filed
by the respondent tenant. The Court while allowing the application on
23.05.1997 had passed the following order:-
"
ORDER
4Kh application u/s 30(2) of Act No.XIII of 1972 is allowed without
prejudice to the respective contentions of the parties. The plaintiff
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may deposit the amount if he so likes at his own risk. The parties
shall be free to agitate the question of validity of deposit in the
S.C.C. Suit pending. File be consigned."
33. Thus, the deposit by respondent-tenant under Section 30(2)
was under his own risk and the parties were free to agitate the question
of validity of deposit in the S.C.C. suit which was pending on that day.
34. We have noted the pleadings in the suit that the plaintiff-landlord
has come up with the case that Act No. 13 of 1972 is not applicable. In
the pleadings of the suit, the plaintiff-appellant has claimed the exemption
from the operation of the Act 13 of 1972, ten years of construction being
not completed. Section 2 of Act No. 13 of 1972 provides:-
"2. Exemptions from operation of Act.
(1)..... ..... .....
(2) Except as provided in sub-section (5) of Section 12, sub-section
(1-A) of Section 21, sub-section (2) of Section 24, Sections 24-A,
24-B, 24-C or sub-section (3) of Section 29, nothing in this Act
shall apply to a building during a period of ten years from the date
on which its construction is completed]:
Provided that where any building is constructed substantially out
of funds obtained by way of loan or advance from the State
Government or the Life Insurance Corporation of India or a bank
or a co-operative society or the Uttar Pradesh Avas Evam Vikas
Parishad, and the period of repayment of such loan or advance
exceeds the aforesaid period of ten years then the reference in
this sub-section to the period of ten years shall be deemed to be a
reference to the period of fifteen years or the period ending with
the date of actual repayment of such loan or advance (including
interest), whichever is shorter.:
Provided further that where construction of a building is completed
on or after April 26, 1985 then the reference in this sub-section to
the period of ten years shall be deemed to be a reference to a
period of forty years from the date on which its construction is
completed."
35. When the plaintiff had claimed exemption from the operation
of the Act No.