Sunday, 7 March 2021

Whether the court should set aside an exparte eviction decree if the tenant fails to file his written statement in the suit despite several chances?

1)  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 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 exparte.


2) Application under Order 9 Rule 13 can be allowed only

 when sufficient cause is made out to set aside the exparte

decree. The present is a case where no sufficient cause 

was made out to set aside the exparte decree.

48. As noted above, the tenant had unsuccessfully

challenged the orders passed by the trial court on

24.02.1997 and 18.03.1997 to proceed exparte.

The application of the tenant to recall the orders

dated 24.02.1997 and 18.03.1997 was rejected by the

trial court with a clear finding that the tenant

wants to delay the case regularly because he is the

tenant and getting benefit of the property. The

application of the tenant was held to be mala fide.

49. The High Court without even adverting to the

earlier order of the trial court dated 16.05.1997,

where categorical findings had been recorded

against the tenant, choose to allow the application

under Order 9 Rule 13 filed by the tenant to recall

exparte decree, which cannot be said to be correct

exercise of jurisdiction under Article 226 of the

Constitution.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.802-803 of 2021


SUBODH KUMAR  Vs  SHAMIM AHMED 


Author: ASHOK BHUSHAN, J.

Dated: March 03, 2021.

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, misapplication

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

predecessorintitle

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 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 exparte.

On 18.03.1997, the plaintifflandlord

was permitted to give exparte

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

5

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 exparte

judgement dated

6

31.03.1998. On 27.07.1998, the tenant had filed an

application for execution of exparte

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 exparte

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 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

7

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

8

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

appellantlandlord

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 appellantlandlord

before the High Court, which

too has been rejected on 24.05.2019. The appellantlandlord

aggrieved by the aforesaid judgments dated

13.12.2018 and 24.05.2019 of the High Court has

come up in this appeal.

9

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 rejected for noncompliance

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

10

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

11

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 executionapplication

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 exparte

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

12

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 noncompliance

of proviso to Section 17.

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

13

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

respondenttenant

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?

14

2)Whether the respondenttenant

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 respondenttenant

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 hyper15

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 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

16

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 tenantrespondent

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

17

the decree or in pursuance of the

judgment, or give such security for

the performance of the decree or

compliance with the judgment as the

Court may, on a previous application

made by him in this behalf, have

directed.

(2) Where a person has become liable

as surety under the proviso to subsection

(1), the security may be

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 Court to pass exparte

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

18

ultimately rejected. Proviso gives two options to

an applicant against whom an exparte

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

19

25.08.1998 to recall the exparte

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 exparte

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

20

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 exparte.

When the decree was put in

execution, the tenant moved application under Order

9 Rule 13 seeking setting aside exparte

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:"

1.The appellantlandlord

filed a

suit for recovery of arrears of rent

and for eviction against the

respondenttenants

on the ground

available under clause (a) of subsection

(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

21

the respondenttenants

to pay an

amount of Rs.8500 as presuit

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

decreeholder

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 respondenttenants

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

22

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 subsection

(1) of Section

17 has undergone a material change

through an amendment brought in by Act

9 of 1935. Earlier these were the

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

23

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

subsection

(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

24

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 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

25

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

payabl 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

26

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 nor there was

any previous application seeking permission of the

Court to give security. Hence, there being noncompliance

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.

27

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

28

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.

29

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 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 respondenttenant

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 plaintifflandlord

has come up with the case

that Act No. 13 of 1972 is not applicable. In the

pleadings of the suit, the plaintiffappellant

has

claimed the exemption from the operation of the Act

30

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 subsection

(5) of Section 12, subsection

(1A)

of Section 21, subsection

(2) of

Section 24, Sections 24A,

24B,

24C

or subsection

(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 cooperative

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 subsection

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

31

construction of a building is

completed on or after April 26, 1985

then the reference in this subsection

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. 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.

32

36. The High Court in the impugned judgment has

relied on two earlier judgments of the High Court

for coming to the conclusion that the deposit of

Section 30(2) of Act No. 13 of 1972 can be adjusted

against the amount required to be deposited as per

Section 17 proviso of Act, 1887. The High Court has

referred to the judgment of the High Court in 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.

37. In the case of Prem Chandra Mishra, certian

amount was deposited by the tenant on first date of

hearing, some amount was also deposited under Order

15 Rule 5 CPC by the tenant. The amount which was

deposited under Section 20(4) of the Act No.13 of

1972 as well as Order 15 Rule 5 CPC which could

have been deemed to have been paid on the date of

such deposit. Following are the observations of the

High Court: 33

"...Question arising in the present

case is that Revisional Court has

recorded finding of fact which has not

at all been assailed before this Court

that entire amount which is due from

tenant under decree qua the same

deposit is already there even before

passing of decree and once entire

amount in question is there can even

in this contingency application under

Section 17(1) of Provincial Small

Cause Courts Act 1887 can be dismissed

for noncompliance

of provision of

proviso. Amount in question under

Section 20(4) of U.P. Act No. 13 of

1972 is permitted to be deposited in

any suit for eviction on the ground

mentioned in Clause (a) of subSection

(2) of Section 20 by the tenant on the

first hearing of the suit

unconditionally and amount which is

already deposited under SubSection

(1) of Section 30 of U.P. Act No. XIII

of 1972 is liable to be deducted for

enabling tenant to save eviction. SubSection

(6) of Section 20 clearly

provide that any amount deposited by

the tenant under SubSection

(4) or

under Rule 5 of Order VX of the First

Schedule to the Code of Civil

Procedure, 1908 shall be paid to the

landlord forthwith on his application

without prejudice to the parties

pleadings and subject to the ultimate

decision in the suits. Similarly SubSection

(4) of Section 30 provides

that on any deposit which are made

under Section 30 the amount in

question which has been deposited can

34

be withdrawn on an application made in

this behalf and further subSection

(6) of Section 30 provides that any

deposit made, same shall be deemed

that the person depositing it has paid

it on the date of such deposit to the

person in whose favour it is deposited

in the case referred to in subsection

(1) or to the landlord in the case

referred to in subsection

(2). Thus,

deposits which are made under SubSection

(4) of Section 20 and under

Section 30 of U.P. Act No. 13 of 1972

and under Order XV Rule 5 C.P.C. are

in custody of the Court and said

amount in question can at any point of

time, be withdrawn by the landlord in

question, and are readily available to

the landlord...”

38. The High Court in the above case came to the

following conclusion: "...

Facts of the present case are

on better footing, inasmuch as here

Revisional Court has recorded

categorical finding that as per

exparte decree. Tenant was required to

deposit Rs. 5338.75/in

cash which

was inclusive of rent claimed by

plaintiff and other expenses and total

which has been deposited by him was

over and above the amount which was to

be paid by him under decree i.e. more

than Rs. 5800/.

In the present case admitted

position is that after ex parte decree

has been passed application to recall

exparte

decree was made on 24.05.1993

and alongwith the same application

under the proviso to Section 17(1) has

not at all been moved. Said

application was admittedly moved

subsequent to the same on 25.02.1994

and in the said application mention

was made by him that he has already

deposited the rent, cost of suit and

interest of JSCC suit much earlier

before passing of exparte decree. Said

application which has been moved on

behalf of tenant was not stating any

thing new rather it was sought to be

stated by the tenant that in the

present case decretal amount is

already with the court as he has

already paid arrears of rent, cost of

suit and interest of JSCC suit much

before passing of exparte decree and

same may be taken into consideration

while entertaining application.

Distinction will have to be drawn qua

the cases wherein entire amount as

mentioned in the proviso to Section 17

of Provincial Small Cause Courts Act

1887 already stands deposited even

before passing of exparte decree. In

the said event of entire amount in

question being prior deposited,

information has to be furnished before

Judge Small Causes Court, then said

fact on verification can be treated as

sufficient compliance as provided

under the proviso to Section 17 (1) of

36

Provincial Small Cause Courts Act

1887, inasmuch as nothing new has been

sought to be done after expiry of the

period rather only information has

been furnished that said condition has

already been complied with and

interest of landlord is fully

protected as per object and the

purpose of Section 17. Tenant cannot

be asked to make deposit for second

time and furnish security for the

second time in the backdrop that prior

to passing of decree entire amount due

under decree or judgment has already

been deposited. Judge Small Causes can

make inquiry in the matter of this

fact on being apprised as to whether

decretal amount is there or not but

where decree in question has been

passed and decretal amount mentioned

as above is not at all there then law

laid down by Hon'ble Apex Court in

Kedarnath's case (supra) has to be

followed in its word and spirit.

Facts narrated above clearly

makes Kedarnath's case (supra)

distinguishable. In the facts of the

present case as finding of fact is

that entire amount has been deposited

which was over and above to the

decretal amount and Revisional Court

has allowed the same then there being

no failure of justice, then there is

hardly any scope of interference.

Consequently, in terms of observations

made above, present writ petition is

dismissed.”

37

39. The perusal of the judgment indicate that the

said was a case where applicability of Act No. 13

of 1972 was not questioned and the deposit made

under Section 20(4) as well as Order 15 Rule 5 CPC

were relied for the purposes of Section 17.

40. In the present case, the plaintiff has come up

with the case that Act No.13 of 1972 is not

applicable in the building in question. When Act

No.13 of 1972 is not applicable, there is no

question of deposit under Section 30 nor deposit

under Section 30 can be said to be valid deposit.

Thus, judgment of the Allahabad High Court, which

has been relied in the impugned judgment, is

clearly distinguishable.

41. We have our own doubts about the correctness

of the view taken by Allahabad High Court in the

above judgment, but for the purposes of the present

case, we need not dwelve any further since in the

38

present case, Act No.13 of 1972 is not applicable.

The deposit under Section 30 is of no avail and

further, as held above, there was no deposit of the

entire amount due on the date of filing the

application under Order 9 Rule 13 by the tenant.

42. In view of the foregoing discussions, our

answer to question Nos.1,2 and 3 are as follow: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 respondenttenant

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 can

39

not be treated to be deposit for the purposes of

proviso under Section 17 of the Act, 1887.

Now we come to the question No.4

43. Even if for the arguments sake, we proceed on

the assumption that in the present case, there is a

compliance of proviso to Section 17, whether

application under Order 9 Rule 13 in the facts of

the present case was rightly rejected by the trial

court is a question to be considered.

44. We have noticed above that prior to exparte

decree dated 31.03.1998, trial court had already

passed two orders to proceed exparte

on 24.02.1997

and 18.03.1997. The tenant respondent had filed an

application 44Ga to recall the orders dated

24.02.1997 and 18.03.1997 which applications were

rejected on 16.05.1997. While rejecting the

application 44Ga filed by the tenant to recall the

40

exparte

order. Following was said by the trial

court while rejecting the application: "...

The defendant wants to delay the

case regularly because he is a tenant

and getting benefit from the property.

The application is based on malafide.

The defendant is failed to explain any

legal and genuine cause for his

absence. It is not reasonable to grant

any other opportunity. The application

is rejected. The plaintiff present his

exparte evidence on 25.05.1997.”

45. The tenant's application to recall the

exparte order was rejected by recording the

findings as noted above. The trial court while

rejecting the application under Order 9 Rule 13 has

considered the entire sequence of events and facts.

The trial court while rejecting the application

under Order 9 Rule 13 vide its order dated

19.04.2007 has recorded categorical finding that

there is no compliance of proviso to Section 17,

the decretal amount having not been deposited at

the time of filing application under Order 9 Rule

13.

41

46. We may also notice the order of the District

Judge by which he rejected the revision petition

filed by the tenant against the order dated

19.04.2007. District Judge in judgment noted that

the tenant was provided with several opportunities

to file written statement.

47. We are, thus, of the considered opinion that

there was no valid ground on which the High Court

could have interfered with the order of the trial

court rejecting the application under Order 9 Rule

13 filed by the tenant to recall the exparte

decree. We may further hold that even in the case

where there is a compliance of proviso to Section

17, the application filed under Order 9 Rule 13 to

set aside the decree passed exparte

or for review

of the judgment cannot be automatically granted.

The compliance of proviso to Section 17 is a Precondition

for maintainability of application under

Order 9 Rule 13. Application under Order 9 Rule 13

can be allowed only when sufficient cause is made

out to set aside the exparte

decree. The present

is a case where no sufficient cause was made out to

set aside the exparte

decree.

48. As noted above, the tenant had unsuccessfully

challenged the orders passed by the trial court on

24.02.1997 and 18.03.1997 to proceed exparte.

The

application of the tenant to recall the orders

dated 24.02.1997 and 18.03.1997 was rejected by the

trial court with a clear finding that the tenant

wants to delay the case regularly because he is the

tenant and getting benefit of the property. The

application of the tenant was held to be mala fide.

49. The High Court without even adverting to the

earlier order of the trial court dated 16.05.1997,

where categorical findings had been recorded

against the tenant, choose to allow the application

under Order 9 Rule 13 filed by the tenant to recall

exparte

decree, which cannot be said to be correct

exercise of jurisdiction under Article 226 of the

Constitution.

50. We, thus, answer question No.4 in the

following words:

The tenantrespondent

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 trial court rejecting such application

which was also confirmed by the District

Judge.

QUESTION NO.5

51. The High Court in its impugned judgment has

referred to judgment of this Court in Kailash

versus Nanku and others, reported in (2005) 4 SCC

480,where this Court has laid down that all rules

44

of procedure are the hand made of justice. In the

above case, this Court was considering the power of

the Court to permit extension of time for filing of

written statement beyond a time as fixed under

Order 8 Rule 1 CPC. The observations in paragraphs

28 and 29, which have been relied by the High

Court, where in reference to Order 8 Rule 1 CPC,

this Court held that provisions under Order 8 Rule

1 CPC are directory.

52. The above judgment was not applicable in the

facts of the present case. Present was not a case

where there was any procedural breach at the part

of tenantrespondent.

The tenantrespondent

has not

complied with condition precedent for

maintainability of the application under Order 9

Rule 13 as laid down in Section 17 proviso.

53. The High Court in paragraph 20 of the judgment

has made following observations:45

"20. Since the learned Courts below

have adopted a hypertechnical

and

pedantic approach while considering

the applications under Order 9 Rule 13

C.P.C. and Section 5 of Limitation

Act, filed by the petitioner,

therefore the impugned orders are

liable to be quashed.”

54. The above observations of the High Court

cannot be approved. The trial court has rejected

the application of tenant under Order 9 Rule 13 not

adopting any hypertechnical

and pedantic approach

rather on the finding that there was noncompliance

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.

46

55. The question no.5 is answered as follows:

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.

56. In view of the foregoing discussions, we are

unable to sustain the judgment of the High Court

dated 13.12.2018. The judgment dated 13.12.2018 as

well as the order dated 24.05.2019 rejecting the

review application as well as consequential order

passed by the trial court dated 24.05.2019 are set

aside. The order of the trial court dated

19.04.2007 rejecting the application under Order 9

Rule 13 of the respondent is upheld.

57. In view of the facts of the present case

especially the fact that the appellant has not been

able to reap the benefit of the decree which was

47

passed in his favour on 31.03.1998, we direct the

Executing Court to execute the decree and put the

appellant in possession along with the payment of

entire decretal amount up to date within a period

of three months from the date the copy of judgment

is produced before the Executing Court.

58. The appeals are allowed with costs of

Rs.25,000/to

be paid by the respondent to the

appellant before the Executing Court.

......................J.

( ASHOK BHUSHAN )

......................J.

( R. SUBHASH REDDY )

New Delhi,

March 03, 2021.

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