SUBODH KUMAR versus SHAMIM AHMED on 3 March 2021

[2021] 1 S.C.R. 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. UrbanBuildings (Regulation of Letting, Rent and Eviction) Act, 1972 – s.30(2) – Code of Civil Procedure, 1908 – Or. 9, R.13 – In the year1994 a suit was filed by the appellant-landlord for possession, rentand mesne profits – Tenant failed to file written statement – TheCourt passed an order to proceed ex-parte – Thereafter, the tenantfiled many applications, which included application u/s. 30(2) ofthe 1972 Act and deposited rent on various occasions from the year1997 to 1998 – Ex-parte judgment was passed and case of thelandlord was allowed – When appellant-landlord filed anapplication for execution of ex-parte judgment, the tenant filed anapplication u/Or.9, R.13 with s.5 of the Limitation Act – No depositwas made u/s. 17 of the 1887 Act – Tenant pleaded that amountdeposited u/s.30(2) of the 1972 Act may be treated as amountdeposited u/s. 17 of the 1887 Act – The trial Court by order dated19.04.2007 rejected application u/Or.9, R.13 and s.5 of theLimitation Act – Revision against the said order was also rejectedby the District Court – Respondent-tenant filed writ petition – TheHigh Court allowed the writ petition by order dated 13.12.2018and remanded the matter back to the trial Court for reconsiderationof tenant’s application u/Or.9, R.13 and s.5 of the Limitation Act –Aggrieved, the appellant-landlord filed SLP and the same wasdismissed and withdrawn – After this order, the review applicationwas filed before the High Court and same was rejected on24.05.2019 – Before the Supreme Court, the respondent no.1-tenanthas filed appeal against the judgment of the High Court dated13.12.2018 and the order dated 24.05.2019 – Held: The proviso tos.17 of the 1887 Act, gives two options to an applicant againstwhom an ex-parte decree has been passed or who applied for reviewof the judgment, i.e., (a) deposit in the Court the amount due from

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Ahim under the decree or in pursuance of the decree; (b) give suchsecurity for the performance of the decree or compliance with thejudgment as the Court made on the previous application made byhim in this behalf directed – In the instant case, where the tenanthas filed an application u/Or.9 R.13 on to recall the ex-parte decree– There is no reference of any previous application praying theBCourt to permit the tenant to give security to satisfy the ex-partedecree – The application was not accompanied by the deposit ofthe amount due from the tenant under the decree – The saidapplication, thus, was not in accordance with proviso to s.17 – Whenthe condition precedent for presenting the application u/Or.9 R.13Cwas 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 depositmade by the tenant u/s. 30(2) was only Rs.17,550/- whereas theamount due as per execution application was Rs.21,660/- –Therefore, the tenant had not even deposited u/s.30(2) the totalDamount due – Further, the deposit of rent u/s. 30(2) the 1972 Act inthe present case can not be treated to be deposit for the purposes ofproviso u/s. 17 of the Act, 1887 – Thus, judgment dated 13.12.2018as well as the order dated 24.05.2019 rejecting the reviewapplication are set aside – The order of the trial Court datedE19.04.2007 rejecting the application u/Or.9 R. 13 of the respondentis upheld – The Executing Court directed to execute the decree andput the appellant in possession.

Allowing the appeals, the Court

Conclusion

Allowing the appeals, the Court

HELD: 1. Proviso to Section 17 of Provincial Small CauseFCourts Act, 1887 has been engrafted with the object thatunscrupulous tenants who do not appear in the Court in the suitproceedings should not be allowed to file the application to recallex-parte decree unless they deposit the entire amount or givesecurity to the Court for compliance of the decree. The provisoGis to take care of those tenants who deliberately do not appear inthe suit neccesiating the Court to pass ex-parte decree. The objectis to protect the landlord and to ensure that the decree passed issatisfied by the tenant, in event, the application under Order 9Rule 13 is ultimately rejected. Proviso gives two options to anapplicant against whom an ex-parte decree has been passed orH

who applied for review of the judgment, i.e., (a) deposit in theCourt the amount due from him under the decree or in pursuanceof the decree; (b) give such security for the performance of thedecree or compliance with the judgment as the Court made onthe previous application made by him in this behalf directed. Thus,requirement of the deposit in the court the entire amount can bewaived only when the Court on the previous application directsthe tenant to give such security for performance of the decree orcompliance with the judgment. The application seeking waiverfrom 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 anapplication under Order 9 Rule 13 on 25.08.1998 to recall theex-parte decree dated 31.03.1998. There is no reference of anyprevious application praying the Court to permit the tenant togive security to satisfy the ex-parte decree. The application dated25.08.1998 was not accompanied by the deposit of the amountdue from the tenant under the decree dated 31.03.1998. Theapplication dated 25.08.1998, thus, was not in accordance withproviso to Section 17. When the condition precedent forpresenting the application under Order 9 Rule 13 was not fulfilled,the application under Order 9 Rule 13 filed by the tenantrespondent did not deserve any consideration and had rightlybeen rejected. [Para 23][1122-D-E]

3. This Court may also notice submission of the theappellant, that the deposit under Section 30(2) of the Act No.13of 1972 which was due on the date of filing of the applicationunder Order 9 Rule 13 CPC was not the deposit of the entireamount. In the execution application filed on 27.07.1998 by thelandlord to execute the decree dated 31.03.1998, the amountwhich 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 on25.08.1998, i.e., subsequent to filing of the execution application,thus, at least the amount of Rs.21,660/- was due. The tenantrespondent has made a deposit under Section 30(2) in July, 1997

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Aof Rs.16,800/- and again Rs.750/- on 18.10.1997 which was rentfrom 30.06.1997 to 30.11.1997. Thus, on the date when theapplication was filed under Order 9 Rule 13, total deposit madeby the tenant under Section 30(2) was only Rs.17,550/- whereasthe amount due as per execution application was Rs.21,660/-.It was only on 25.11.1998, i.e., much after filing of the applicationBunder Order 9 Rule 13, the tenant deposited amount ofRs.1,950/- as a rent from 30.11.1997 to 31.12.1998. Thus, evenaccording to the own case of the respondent tenant on the datewhen application under Order 9 Rule 13 was filed, i.e., 25.08.1998,the tenant had not deposited under Section 30(2) the total amountCdue, thus, by no stretch of imagination the tenant could haveclaimed compliance of proviso to Section 17 of Act, 1887.[Para 31][1126-D-E]

5. When the plaintiff had claimed exemption from theoperation of the Act No. 13 of 1972, it was specific pleading asDnoted above, how deposit can be made under Section 30 of theAct by the tenant respondent. Section 2 begin with the expressionthat ‘Nothing in this Act shall apply’. When there is exemptionfrom the applicability of the Act No.13 of 1972 as pleaded by theplaintiff, Section 30 of the Act shall also not be applicable. WhenSection 30 itself is not applicable to the building, the depositEclaimed to be made under Section 30(2) is wholly irrelevant, forany purposes including for purposes of proviso to Section 17 ofAct, 1887. [Para 35][1127-H; 1128-A-B]

6. Therefore, 1) In the application filed by the tenant on25.08.1998 under Order 9 Rule 13, there was no compliance ofFSection 17 of 1887 Act and the application was incompetent;2) The respondent-tenant had not deposited the entire amountdue 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 of1972 in the present case cannot be treated to be deposit for theGpurposes of proviso under Section 17 of the Act, 1887.[Para 42][1131-C-E]

7. The tenant-respondent has not made out any sufficientground to allow the application under Order 9 Rule 13 and theHigh Court committed error in interfering with the order of the H

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trial court rejecting such application which was also confirmed bythe District Judge. [Para 50][1133-B-C]

8. The trial court has rejected the application of tenantunder Order 9 Rule 13 not adopting any hyper-technical andpedantic approach rather on the finding that there wasnon-compliance of proviso to Section 17 of the Act, 1887, hence,the application deserves to be rejected. Requirement underproviso to Section 17 can neither be said to be hypertechnicalnor pedantic but the same was the requirement of law andcondition precedent for maintainability of application under Order9 Rule 13. The High Court is not right in its view that trial courtand Revisional Court has taken hypertechnical and pedanticapproach while considering the application under Order 9 Rule13 of CPC and Section 5 of the Limitation Act. [Paras 54 and55][1133-G-H; 1134-A-C]

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Kedarnath versus Mohan Lal Kesarwari and Others(2002) 2 SCC 16 : [2002] 1 SCR 144; Prem ChandraMishra versus IInd Additional District Judge, Etah, WritPetition No. 12103 of 1996 decided on 11.09.2008 reported in (2008) 9 ADJ 13; Kailash versus Nankuand Others, reported in (2005) 4 SCC 480 : [2005] 3SCR 289 – referred to.

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Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 802-803 of 2021.

From the Judgment and Order dated 13.12.2018 and 24.05.2019of 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.

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R.B. Singhal, Sr. Adv., Anupam Mishra, Adv. for the Appellant.

Dr. Sumant Bharadwaj, Ms. Mridula Ray Bharadwaj, Advs. forthe Respondent.

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[2021] 1 S.C.R.

AThe Judgment of the Court was delivered byASHOK BHUSHAN, J.

1. Leave granted

2. This appeal has been filed against the judgment of the HighBCourt 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 dated24.05.2019 rejecting the Review Petition filed by the appellant to reviewthe judgment dated 13.12.2018.

3. The facts of the case giving rise to this appeal, which areCrelevant for deciding the issues raised, need to be carefully noticed. TheHigh Court in the impugned judgment although has noted few facts butcertain relevant facts have been missed by the High Court which havebearing on the issues which had arisen before the High Court.

4. The facts of any case are the foundation on which the disputeDbetween the parties arises. The arguments are built by the counsel forthe parties in reference to the foundational facts for applying the legalprinciples to decide the dispute. A clear grasp of foundational facts areessential. The law is applied on facts and when essential facts are missed,mis-application of law is bound to happen. We may recall prophetic wordsof Mr. Justice Cardozo when he said: -E“...More and more we lawyers are awakening to a perception ofthe truth what divides and distracts us in the solution of a legalproblem is not so much uncertainty about the law as uncertaintyabout the facts - the facts which generate the law. Let the factsbe known as they are, and the law will sprout from the seed andFturn its branches toward the light.”

5. The appellant herein shall be referred as ‘landlord’ whereasthe respondent No.1 Shamim Ahmed as ‘tenant’. Dispute relates to ashop being shop No.39(29) situated in Compound No.3, Civil Lines,Roorkee, District Haridwar. The respondent was inducted as tenant atGRs.150/- per month by predecessor-in-title of the landlord. The landlordpurchased the shop in question by sale deed on 30.01.1991. The S.S.Ccase No.4 of 1994 was filed by the landlord on 18.03.1994 claimingpossession, rent and mesne profit. The landlord’s case was that the noticewas given on 24.12.1993 demanding the amount of rent, due rent, profitetc. Thereafter the S.C.C. Case No.4 of 1994 was filed in the Court ofH

Additional Civil Judge, Senior Division, Roorkee. On 14.07.1994, thetenant was served summons. He prayed time to file a written Statementtill 24.08.1994. The tenant filed an application under Section 10 CPC tostay the suit as well as the application under Order VII Rule 11 CPC.Both applications were rejected and the Court allowed fifteen days timeto file a written statement and fixed 16.10.1995 for hearing. On16.10.1995, the tenant again took time but did not file a written statement.Several other opportunities were given to the tenant to file a writtenstatement in which he failed. On 24.02.1997, Court passed an order toproceed ex-parte. On 18.03.1997, the plaintiff- landlord was permittedto give ex-parte evidence. The application 44Ga was filed by the tenantto 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 todelay the case regularly because he is a tenant and getting the benefit ofproperty. The application was found to be mala fide.

6. On 23.05.1997, the tenant filed an application under Section30(2) of the U.P. Urban Buildings (Regulation of Letting, Rent andEviction) Act, 1972, to deposit the rent. The application was allowed on23.05.1997 by the Court observing that the plaintiff may deposit theamount on his own risk. On 07.07.1997, the amount of rent from01.03.1988 to 30.06.1997 amounting to Rs.16,800/- was deposited bythe tenant under Section 30(2).

7. Against the Order dated 16.05.1997, a revision was filed by thetenant before the District Judge, which too was rejected on 22.08.1997.On 18.10.1997, the tenant further deposited Rs.750/- as rent from30.06.1997 to 30.11.1997.

8. The S.C.C. case No.4 of 1994 filed by the landlord was allowedby ex-parte judgement dated 31.03.1998. On 27.07.1998, the tenant hadfiled an application for execution of ex-parte decree dated 31.03.1998claiming a total amount of Rs.21,660/-. The tenant thereafter on25.08.1998 filed an application under Order 9 Rule 13 CPC along withapplication under Section 5 of Limitation Act for condoning the delay torecall the ex-parte decree dated 31.03.1998. Along with application dated25.08.1998 filed under Order 9 Rule 13 CPC, no deposit was made bythe tenant as required by Section 17 of the Provincial Small Cause CourtsAct, 1887 (hereinafter referred to as “Act,1887”).

9. On 25.11.1998, i.e., after filing the application under Order 9Rule 13, the tenant made further deposit of Rs.1950/- as a rent from AB

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A30.11.1997 to 31.12.1998. On 27.07.2002, the application was filed bythe 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 theAct, 1887, and the tenant be granted benefit of Section 17.

10. The appellant landlord filed a detailed objection datedB07.08.2002 opposing the application dated 27.07.2002. The trial courtvide order dated 19.04.2007 rejected the application filed by the tenantunder Order 9 Rule 13 and Section 5 of the Limitation Act. A revisionwas filed by the tenant against the order dated 19.04.2007 before theDistrict 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 asCorder dated 23.02.2008 of the District Judge rejecting the revision, aWrit 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 theimpugned judgment dated 13.12.2018. The High Court set aside the orderdated 19.04.2007 of the trial court and 23.02.2008 of the RevisionalDCourt and remanded the matter back to the trial court for reconsiderationof tenant’s application under Order 9 Rule 13 CPC and Section 5 of theLimitation Act in accordance with law. The appellant-landlord aggrievedby the judgment of the High Court dated 13.12.2018 filed a special leavepetition in this Court, being SLP(Civil) Diary No.15791 of 2019 whichEwas dismissed and withdrawn by the landlord with liberty to file ReviewPetition before the High Court. Liberty to come back was also grantedby this Court vide Order dated 10.05.2019. After the Order of this Courtdated 10.05.2019, a review application was filed by the appellant-landlordbefore the High Court, which too has been rejected on 24.05.2019. Theappellant- landlord aggrieved by the aforesaid judgments dated 13.12.2018Fand 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, thetrial court in pursuance of the remand order has allowed the applicationunder Order 9 Rule 13 CPC and Section 5 of the Limitation Act by orderdated 24.05.2019.G13. We have heard Shri R.B.Singhal, learned senior counselappearing for the appellant and Dr. Sumant Bharadwaj, learned counselappearing for the respondent.

14. Shri R.B. Singhal, learned senior counsel for the appellantsubmitted that application of tenant under Order 9 Rule 13 was rightlyH

rejected for non-compliance of mandatory provisions of Section 17Proviso of the Act, 1887. It is submitted that as per proviso to Section17, the tenant was obliged to deposit the decretal amount due on thedate of filing the application which has not been complied with. Theapplication has been rightly rejected by the trial court. He has furthersubmitted that the application to give the benefit of the amount depositedunder Section 30(2) of UP Act No.13 of 1972 was filed by the tenant on27.07.2002 that is after four years which could not have enured to thebenefit 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 therespondent No.5, hence, the deposit also was not relevant for givingbenefit to the tenant under Section 17 proviso. The deposit under Section30(2) being in joint name which could not be withdrawn by landlord-appellant alone, such deposit cannot help the respondent tenant forcompliance of Section 17 proviso. Even the deposits made under Section30(2) was not the deposit of the total amount due on the date of filing theapplication under Order 9 Rule 13.

15. It is submitted that 25.08.1998 is the date of presentingapplication under Order 9 Rule 13 and the tenant had deposited only theamount of Rs.17,550/- which was not the entire decretal amount payableby tenant. The execution-application has already been filed by the landlordappellant on 27.07.1998 in which the total decretal amount claimed wasRs.21,660/-. Thus, even assuming without admitting that amount underSection 30(2) can be adjusted, the amount being not total decretal amount,benefit under Section 17 proviso could not be extended to the tenant andthe application was rightly rejected. It is further submitted that therewas no ground for allowing the application under Order 9 Rule 13 sincethe order to proceed ex-parte against the tenant was unsuccessfullychallenged by the tenant before the Revisional Court. There was nogenuine ground for allowing the application under Order 9 Rule 13. TheHigh Court committed error in interfering with the order of the trialcourt as well as the Revisional Court.

16. Dr. Sumant Bharadwaj, appearing for the respondent submitsthat the amount deposited under Section 30(2) of U.P.Act No.13 of1972 was entitled to be given credit for the purposes of proviso to Section17 of Act, 1887 and the High Court has rightly taken the view that theamount up to 31.12.1998 having already been deposited under Section30(2), the application under Order 9 Rule 13 could not have been rejectedfor non-compliance of proviso to Section 17.

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A17. It is submitted that the High Court has rightly taken the viewthat the Court below had adopted hypertechnical and pedantic approachwhile considering the application under Order 9 Rule 13 and Section 5 ofthe Limitation Act. It is submitted that the tenant had deposited the entiredecretal amount under Section 30(2) which was due at the time of filingapplication under Order 9 Rule 13. The application filed by the tenantBwas wrongly rejected by the trial court as well as the Revisional Court.The High Court has done substantial justice in allowing the applicationunder Order 9 Rule 13.

18. We have considered the submissions of the learned counselfor the parties and have perused the record.C

19. From the submissions of the learned counsel for the partiesand materials on record, following issues arise for consideration in thisappeal:-

1) Whether in the application filed by the respondent-tenantunder Order 9 Rule 13, CPC on 25.08.1998, the requirementsDas contained in Proviso to Section 17 of the Provincial SmallCause Courts Act, 1887, were complied with?

2) Whether the respondent-tenant had deposited the entireamount due on 25.08.1998 under Section 30(2) of U.P. ActNo.13 of 1972?

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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 bedeposited under proviso to Section 17 of Act, 1887?

4) Whether the respondent-tenant has made sufficient groundto allow the application filed under Order 9 Rule 13 CPCFdated 25.08.1998?

5) Whether the High Court is right in its view that the trialcourt and the Revisional Court has taken a hyper-technicaland pedantic approach while considering the applicationunder Order 9 Rule 13 CPC and Section 5 of the LimitationGAct filed by the respondent?

The first, second and third questions being interrelated are takentogether.

20. The S.C.C. suit No.4 of 1994 was filed by the appellant landlordin March, 1994. The plaintiff’s case was that he had purchased theH

property by the sale deed dated 30.01.1991 after due permission fromthe District Judge, Haridwar. The plaintiff claimed to be owner of theproperty w.e.f. 30.01.1991. Defendant Nos.2 to 5 had also joined theplaintiff in the notice given to the respondent terminating the tenancy.There was categorical pleading in the plaint that the U.P. Act No.13 of1972 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 isto the following effect:- “5. That U.P. Act 13 of 1972 is not applicable to the disputedproperty. It is the recent construction and is subject to assessmentby Municipal Board, Roorkee and the first such assessmentthereon came into effect from 01.04.1984.”

21. We may notice Section 17 and its proviso, compliance of whichwas required by the tenant- respondent while filing application underOrder 9 Rule 13 CPC. Section 17 is as follows:- “17.Application of the Code of Civil procedure.- (1) Theprocedure prescribed in the Code of Civil Procedure,1908(5 of1908), shall, save in so far as is otherwise provided by that Codeor by this Act, be the procedure followed in a Court of SmallCauses in all suits cognizable by it and in all proceedings arisingout of such suits; Provided that an applicant for an order to set aside a decree passedex parte or for a review of judgment shall, at the time of presentinghis application, either deposit in the Court the amount due fromhim under the decree or in pursuance of the judgment, or givesuch security for the performance of the decree or compliancewith the judgment as the Court may, on a previous applicationmade by him in this behalf, have directed.

(2) Where a person has become liable as surety under the provisoto sub-section (1), the security may be realized in manner providedby Section 145 of the Code of Civil Procedure, 1908 (5 of 1908).”

22. Proviso to Section 17 has been engrafted with the object thatunscrupulous tenants who do not appear in the Court in the suitproceedings should not be allowed to file the application to recall ex-parte decree unless they deposit the entire amount or give security tothe Court for compliance of the decree. The proviso is to take care ofthose tenants who deliberately do not appear in the suit neccesiating the AB

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ACourt to pass ex-parte decree. The object is to protect the landlord andto ensure that the decree passed is satisfied by the tenant, in event, theapplication under Order 9 Rule 13 is ultimately rejected. Proviso givestwo options to an applicant against whom an ex-parte decree has beenpassed or who applied for review of the judgment, i.e., (a) deposit in theCourt the amount due from him under the decree or in pursuance of theBdecree; (b) give such security for the performance of the decree orcompliance with the judgment as the Court made on the previousapplication made by him in this behalf directed. Thus, requirement of thedeposit in the court the entire amount can be waived only when theCourt on the previous application directs the tenant to give such securityCfor performance of the decree or compliance with the judgment. Theapplication seeking waiver from deposit has been mentioned as “a previousapplication” i.e. previous to the application filed under Order 9 Rule 13.

23. The present is a case where the tenant has filed an applicationunder Order 9 Rule 13 on 25.08.1998 to recall the ex-parte decree datedD31.03.1998. There is no reference of any previous application prayingthe Court to permit the tenant to give security to satisfy the ex-partedecree. The application dated 25.08.1998 was not accompanied by thedeposit of the amount due from the tenant under the decree dated31.03.1998. The application dated 25.08.1998, thus, was not in accordancewith proviso to Section 17. When the condition precedent for presentingEthe application under Order 9 Rule 13 was not fulfilled, the applicationunder Order 9 Rule 13 filed by the tenant respondent did not deserveany consideration and had rightly been rejected.

24. This Court had occasion to consider Section 17(1) proviso ofthe Act, 1887, and application filed under Order 9 Rule 13 in KedarnathFversus Mohan Lal Kesarwari and others, (2002) 2 SCC 16. In theabove case, a suit was filed by the landlord for recovery of arrears ofrent and eviction under Section 20(2) of Act No.13 of 1972 which wastriable by the Court of Small Causes. The suit was decreed ex-parte.When the decree was put in execution, the tenant moved applicationGunder Order 9 Rule 13 seeking setting aside ex-parte decree. Neitherthe amount due on the decree was deposited nor an application wasfiled seeking direction from the Court to give security. The facts havebeen noted in paragraph 1 of the judgment, which is to the followingeffect:- H

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“1.The appellant-landlord filed a suit for recovery of arrears ofrent and for eviction against the respondent-tenants on the groundavailable under clause (a) of sub-section (2) of Section 20 of theU.P.Urban Buildings (Regulation of Letting, Rent and Eviction)Act, 1972, hereinafter “the U.P.Urban Buildings Act” for short. Asuit of the nature filed by the appellant being triable by a Court ofSmall Causes, as provided by the U.P. Civil Laws AmendmentAct, 1972 was filed in the Court of Small Causes, Allahabad. On09.08.1996, the suit came to be decreed ex parte. The decreedirected the respondent-tenants to pay an amount of Rs.8500 aspre-suit arrears of rent and a further amount calculated at therate of Rs.250 per month from the date of institution of suit to thedate of recovery of possession. A decree for eviction was alsopassed. The decree was put to execution and on 21.02.1998 thedecree-holder obtained possession over the suit premises withpolice help. The Court Amin certified the delivery of possessionto the executing court. On 26.02.1998, the respondent-tenantsmoved an application under Order 9 Rule 13 CPC seeking settingaside of the ex parte decree. Neither was the amount due underthe decree deposited nor was an application filed seeking directionof the Court to give security for the performance of the decree inlieu of depositing the decretal amount. On 14.10.1998, argumentswere heard on the application under Order 9 Rule 13 CPC. TheCourt appointed 16.10.1998 for orders.”

25. The trial court had rejected the application forming an opinionthat application under Order 9 Rule 13 has been filed without complyingwith the proviso to Section 17 which application was not maintainable.In a revision filed before the District Judge, the delay was condoned andthe District Judge directed the trial court to accept security as proposedand decide the application under Order 9 Rule 13 on merits. The writpetition before the High Court by the landlord was dismissed, thereafterthe matter had come to this Court.

26. This Court, after noticing Section 17, has extracted thestatement 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) ofSection 17 has undergone a material change through anamendment brought in by Act 9 of 1935. Earlier these were the AB

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words - “security to the satisfaction of the court for theperformance of the decree or compliance with the judgment, asthe court may direct” whic have been deleted and substituted bythe present words - “such security for the performance of thedecree or compliance with the judgment as the court may, on aprevious application made by him in this behalf, have directed”.The Statement of Objects and Reasons for the 1935 amendmentwas set out as under:

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“The Act is designed to remove certain doubts which have arisenin the interpretation of the proviso to sub-section (1) of Section 17of the Provincial Small Cause Courts Act, 1887. As the sectionstands, an applicant is required to give security to the satisfactionof the court at the time of presenting his application. It followsthat, in order to ascertain what security satisfies the court, theapplicant 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 C

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giving of approved security. The Act is intended to make it clearthat the preliminary application to ascertin what security will satisfythe court must be made and decided before the substantiveapplication for the order to set aside the decree, and that it alwaysis open to the applicant to adopt the alternative course of depositingthe total decretal amount.(Vide Statement of Objects and Reasons,Gazette of India, 1935, Part V, p.90).”

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27. This Court has held that compliance of the proviso to Section17 is mandatory for making application under Order 9 Rule 13. Inparagraph 8 and 9, following was laid down: - F

“8. A bare reading of the provision shows that the legislature haschosen to couch the language of the proviso in a mandatory formand we see no reason to interpret, construe and hold the nature ofthe proviso as directory. An application seeking to set aside an exparte decree passed by a Court of Small Causes or for a reviewGof its judgment must be accompanied by a deposit in the court ofthe amount due from the applicant under the decree or in pursuanceof the judgment. The provision as to deposit can be dispensedwith by the court in its discretion subject to a previous applicationby the applicant seeking direction of the court for leave to furnishsecurity and the nature thereof. The proviso does not provide for H

the extent of time by which such application for dispensation maybe filed. We think that it may be filed at any time up to the time ofpresentation of application for setting aside ex parte decree or forreview and the court may treat it as a previous application. Theobligation of the applicant is to move a previous application fordispensation. It is then for the court to make a prompt order. Thedelay on the part of the court in passing an appropriate orderwould not be held against the applicant because none can be madeto suffer for the fault of the court.

9. In the case at hand, the application for setting aside ex partedecree was not accompanied by deposit in the court of the amountdue and payable by the applicant under the decree. The applicantalso did not move any application for dispensing with deposit andseeking leave of the court for furnishing such security for theperformance of the decree as the court may have directed. Theapplication 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 theapplication which was not in compliance with Section 17 and both theDistrict Judge and the High Court committed error in interfering withthe 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 couldnot have interfered with the order of the trial court. The illegalityin exercise of jurisdiction by the District Court disposing of therevision petition was brought to notice of the High Court and itwas a fit case where the High Court ought to have in exercise ofits supervisory jurisdiction set aside the order of the District Courtby holding the application filed by the respondents as incompetentand hence not entertainable. We need not examine the otherquestion whether a sufficient cause for condoning the delay inmoving the application for leave of the court to furnish securityfor performance was made out or not and whether such anapplication 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 9Rule 13, i.e., 25.08.1998, neither any deposit was made by the tenant A

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Anor there was any previous application seeking permission of the Courtto give security. Hence, there being non-compliance of proviso to Section17, application was liable to be rejected and the trial court vide its orderdated 19.04.2007 had rightly rejected the application under Order 9 Rule13.

B30. We may also notice one more submission of the learned counselfor the appellant, that the deposit under Section 30(2) of the Act No.13of 1972 which was due on the date of filing of the application underOrder 9 Rule 13 CPC was not the deposit of the entire amount. In theexecution application filed on 27.07.1998 by the landlord to executethe decree dated 31.03.1998, the amount which was claimed wasCRs.21,660/- which was due till then.

31. The application under Order 9 Rule 13 CPC was filed on25.08.1998, i.e., subsequent to filing of the execution application, thus, atleast the amount of Rs.21,660/- was due. The tenant respondent hasmade a deposit under Section 30(2) in July, 1997 of Rs.16,800/- andDagain Rs.750/- on 18.10.1997 which was rent from 30.06.1997 to30.11.1997. Thus, on the date when the application was filed under Order9 Rule 13, total deposit made by the tenant under Section 30(2) was onlyRs.17,550/- whereas the amount due as per execution application wasRs.21,660/-. It was only on 25.11.1998, i.e., much after filing of theEapplication under Order 9 Rule 13, the tenant deposited amount ofRs.1,950/- as a rent from 30.11.1997 to 31.12.1998. Thus, even accordingto the own case of the respondent tenant on the date when applicationunder Order 9 Rule 13 was filed, i.e., 25.08.1998, the tenant had notdeposited under Section 30(2) the total amount due, thus, by no stretchof imagination the tenant could have claimed compliance of proviso toFSection 17 of Act, 1887.

32. Now, we may proceed to consider as to whether deposit underSection 30(2) in the facts of the present case could have enured to thebenefit of tenant for the purposes of deposit under Section 17 of Act,1887. The deposit was made on an applicaion under Section 30(2) filedGby the respondent tenant. The Court while allowing the application on23.05.1997 had passed the following order:- “ORDER

4Kh application u/s 30(2) of Act No.XIII of 1972 is allowed withoutprejudice to the respective contentions of the parties. The plaintiffH

may deposit the amount if he so likes at his own risk. The partiesshall be free to agitate the question of validity of deposit in theS.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 questionof 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-landlordhas come up with the case that Act No. 13 of 1972 is not applicable. Inthe pleadings of the suit, the plaintiff-appellant has claimed the exemptionfrom the operation of the Act 13 of 1972, ten years of construction beingnot 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 Actshall apply to a building during a period of ten years from the dateon which its construction is completed]:

Provided that where any building is constructed substantially outof funds obtained by way of loan or advance from the StateGovernment or the Life Insurance Corporation of India or a bankor a co-operative society or the Uttar Pradesh Avas Evam VikasParishad, and the period of repayment of such loan or advanceexceeds the aforesaid period of ten years then the reference inthis sub-section to the period of ten years shall be deemed to be areference to the period of fifteen years or the period ending withthe date of actual repayment of such loan or advance (includinginterest), whichever is shorter.:

Provided further that where construction of a building is completedon or after April 26, 1985 then the reference in this sub-section tothe period of ten years shall be deemed to be a reference to aperiod of forty years from the date on which its construction iscompleted.”

35. When the plaintiff had claimed exemption from the operationof the Act No. 13 of 1972, it was specific pleading as noted above, howdeposit can be made under Section 30 of the Act by the tenant respondent.

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ASection 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 1972as pleaded by the plaintiff, Section 30 of the Act shall also not beapplicable. When Section 30 itself is not applicable to the building, thedeposit claimed to be made under Section 30(2) is wholly irrelevant, forany purposes including for purposes of proviso to Section 17 of Act,B1887.

36. The High Court in the impugned judgment has relied on twoearlier judgments of the High Court for coming to the conclusion that thedeposit of Section 30(2) of Act No. 13 of 1972 can be adjusted againstthe amount required to be deposited as per Section 17 proviso of Act,C1887. The High Court has referred to the judgment of the High Court inPrem 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 wasDdeposited by the tenant on first date of hearing, some amount was alsodeposited under Order 15 Rule 5 CPC by the tenant. The amount whichwas deposited under Section 20(4) of the Act No.13 of 1972 as well asOrder 15 Rule 5 CPC which could have been deemed to have been paidon the date of such deposit. Following are the observations of the HighECourt: - “...Question arising in the present case is that Revisional Courthas recorded finding of fact which has not at all been assailedbefore this Court that entire amount which is due from tenantunder decree qua the same deposit is already there even beforeFpassing of decree and once entire amount in question is there caneven in this contingency application under Section 17(1) ofProvincial Small Cause Courts Act 1887 can be dismissed fornon-compliance of provision of proviso. Amount in question underSection 20(4) of U.P. Act No. 13 of 1972 is permitted to bedeposited in any suit for eviction on the ground mentioned in ClauseG(a) of sub-Section (2) of Section 20 by the tenant on the firsthearing of the suit unconditionally and amount which is alreadydeposited under Sub-Section (1) of Section 30 of U.P. Act No.XIII of 1972 is liable to be deducted for enabling tenant to saveeviction. Sub-Section (6) of Section 20 clearly provide that anyHamount deposited by the tenant under Sub-Section (4) or under

Rule 5 of Order VX of the First Schedule to the Code of CivilProcedure, 1908 shall be paid to the landlord forthwith on hisapplication without prejudice to the parties pleadings and subjectto the ultimate decision in the suits. Similarly Sub-Section (4) ofSection 30 provides that on any deposit which are made underSection 30 the amount in question which has been deposited canbe withdrawn on an application made in this behalf and furthersub-Section (6) of Section 30 provides that any deposit made,same shall be deemed that the person depositing it has paid it onthe date of such deposit to the person in whose favour it is depositedin the case referred to in sub-section (1) or to the landlord in thecase referred to in sub-section (2). Thus, deposits which are madeunder Sub-Section (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 incustody of the Court and said amount in question can at any pointof time, be withdrawn by the landlord in question, and are readilyavailable to the landlord...”

38. The High Court in the above case came to the followingconclusion: - “...Facts of the present case are on better footing, inasmuch ashere Revisional Court has recorded categorical finding that asper exparte decree. Tenant was required to deposit Rs. 5338.75/- in cash which was inclusive of rent claimed by plaintiff andother expenses and total which has been deposited by him wasover and above the amount which was to be paid by him underdecree i.e. more than Rs. 5800/-.

In the present case admitted position is that after ex parte decreehas been passed application to recall ex-parte decree was madeon 24.05.1993 and alongwith the same application under the provisoto Section 17(1) has not at all been moved. Said application wasadmittedly moved subsequent to the same on 25.02.1994 and inthe said application mention was made by him that he has alreadydeposited the rent, cost of suit and interest of JSCC suit muchearlier before passing of exparte decree. Said application whichhas been moved on behalf of tenant was not stating any thingnew rather it was sought to be stated by the tenant that in thepresent case decretal amount is already with the court as he hasalready paid arrears of rent, cost of suit and interest of JSCC suit A

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Amuch before passing of exparte decree and same may be takeninto consideration while entertaining application. Distinction willhave to be drawn qua the cases wherein entire amount asmentioned in the proviso to Section 17 of Provincial Small CauseCourts Act 1887 already stands deposited even before passing ofexparte decree. In the said event of entire amount in questionBbeing prior deposited, information has to be furnished before JudgeSmall Causes Court, then said fact on verification can be treatedas sufficient compliance as provided under the proviso to Section17 (1) of Provincial Small Cause Courts Act 1887, inasmuch asnothing new has been sought to be done after expiry of the periodCrather only information has been furnished that said condition hasalready been complied with and interest of landlord is fullyprotected as per object and the purpose of Section 17. Tenantcannot be asked to make deposit for second time and furnishsecurity for the second time in the backdrop that prior to passingof decree entire amount due under decree or judgment has alreadyDbeen deposited. Judge Small Causes can make inquiry in the matterof this fact on being apprised as to whether decretal amount isthere or not but where decree in question has been passed anddecretal amount mentioned as above is not at all there then lawlaid down by Hon’ble Apex Court in Kedarnath’s case (supra)Ehas to be followed in its word and spirit.

Facts

Facts narrated above clearly makes Kedarnath’s case (supra)distinguishable. In the facts of the present case as finding of factis that entire amount has been deposited which was over andabove to the decretal amount and Revisional Court has allowedFthe same then there being no failure of justice, then there is hardlyany scope of interference.

Consequently, in terms of observations made above, present writpetition is dismissed.”

39. The perusal of the judgment indicate that the said was a caseGwhere applicability of Act No. 13 of 1972 was not questioned and thedeposit made under Section 20(4) as well as Order 15 Rule 5 CPC wererelied for the purposes of Section 17.

40. In the present case, the plaintiff has come up with the casethat Act No.13 of 1972 is not applicable in the building in question. WhenHAct 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 inthe impugned judgment, is clearly distinguishable.

41. We have our own doubts about the correctness of the viewtaken by Allahabad High Court in the above judgment, but for the purposesof the present case, we need not dwelve any further since in the presentcase, Act No.13 of 1972 is not applicable. The deposit under Section 30is of no avail and further, as held above, there was no deposit of theentire amount due on the date of filing the application under Order 9Rule 13 by the tenant.

42. In view of the foregoing discussions, our answer to questionNos.1,2 and 3 are as follow:-

1) In the application filed by the tenant on 25.08.1998 under Order9 Rule 13, there was no compliance of Section 17 of 1887 Actand the application was incompetent.

2) The respondent-tenant had not deposited the entire amountdue on 25.08.1998 even under Section 30(2) of Act No.13 of1972.

3) The deposit of rent under Section 30(2) of the Act No.13 of1972 in the present case can not be treated to be deposit for thepurposes 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 assumptionthat 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 presentcase was rightly rejected by the trial court is a question to be considered.

44. We have noticed above that prior to ex-parte decree dated31.03.1998, trial court had already passed two orders to proceed ex-parte on 24.02.1997 and 18.03.1997. The tenant respondent had filed anapplication 44Ga to recall the orders dated 24.02.1997 and 18.03.1997which applications were rejected on 16.05.1997. While rejecting theapplication 44Ga filed by the tenant to recall the ex-parte order. Followingwas 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 A

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Abased on malafide. The defendant is failed to explain any legaland genuine cause for his absence. It is not reasonable to grantany other opportunity. The application is rejected. The plaintiffpresent his exparte evidence on 25.05.1997.”

45. The tenant’s application to recall the exparte order was rejectedBby recording the findings as noted above. The trial court while rejectingthe application under Order 9 Rule 13 has considered the entire sequenceof events and facts. The trial court while rejecting the application underOrder 9 Rule 13 vide its order dated 19.04.2007 has recorded categoricalfinding that there is no compliance of proviso to Section 17, the decretalamount having not been deposited at the time of filing application underCOrder 9 Rule 13.

46. We may also notice the order of the District Judge by whichhe rejected the revision petition filed by the tenant against the orderdated 19.04.2007. District Judge in judgment noted that the tenant wasprovided with several opportunities to file written statement.D

47. We are, thus, of the considered opinion that there was no validground on which the High Court could have interfered with the order ofthe trial court rejecting the application under Order 9 Rule 13 filed by thetenant to recall the ex-parte decree. We may further hold that even inthe case where there is a compliance of proviso to Section 17, theEapplication filed under Order 9 Rule 13 to set aside the decree passedex-parte or for review of the judgment cannot be automatically granted.The compliance of proviso to Section 17 is a Pre- condition formaintainability of application under Order 9 Rule 13. Application underOrder 9 Rule 13 can be allowed only when sufficient cause is made outFto set aside the ex-parte decree. The present is a case where no sufficientcause was made out to set aside the ex-parte decree.

48. As noted above, the tenant had unsuccessfully challenged theorders passed by the trial court on 24.02.1997 and 18.03.1997 to proceedex-parte. The application of the tenant to recall the orders datedG24.02.1997 and 18.03.1997 was rejected by the trial court with a clearfinding that the tenant wants to delay the case regularly because he isthe tenant and getting benefit of the property. The application of thetenant was held to be mala fide.

49. The High Court without even adverting to the earlier order ofthe trial court dated 16.05.1997, where categorical findings had beenH

recorded against the tenant, choose to allow the application under Order9 Rule 13 filed by the tenant to recall ex-parte decree, which cannot besaid to be correct exercise of jurisdiction under Article 226 of theConstitution.

50. We, thus, answer question No.4 in the following words:

The tenant-respondent has not made out any sufficient ground toallow the application under Order 9 Rule 13 and the High Courtcommitted error in interfering with the order of the trial courtrejecting such application which was also confirmed by the DistrictJudge.

QUESTION NO.5

51. The High Court in its impugned judgment has referred tojudgment of this Court in Kailash versus Nanku and others, reportedin (2005) 4 SCC 480, where this Court has laid down that all rules ofprocedure are the hand made of justice. In the above case, this Courtwas considering the power of the Court to permit extension of time forfiling of written statement beyond a time as fixed under Order 8 Rule 1CPC. The observations in paragraphs 28 and 29, which have been reliedby the High Court, where in reference to Order 8 Rule 1 CPC, thisCourt held that provisions under Order 8 Rule 1 CPC are directory.

52. The above judgment was not applicable in the facts of thepresent case. Present was not a case where there was any proceduralbreach at the part of tenant-respondent. The tenant-respondent has notcomplied with condition precedent for maintainability of the applicationunder Order 9 Rule 13 as laid down in Section 17 proviso.

53. The High Court in paragraph 20 of the judgment has madefollowing observations:- “20. Since the learned Courts below have adopted a hyper-technical and pedantic approach while considering the applicationsunder Order 9 Rule 13 C.P.C. and Section 5 of Limitation Act,filed by the petitioner, therefore the impugned orders are liable tobe quashed.”

54. The above observations of the High Court cannot be approved.The trial court has rejected the application of tenant under Order 9 Rule13 not adopting any hyper-technical and pedantic approach rather onthe finding that there was non-compliance of proviso to Section 17 of A

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Athe Act, 1887, hence, the application deserves to be rejected. Requirementunder proviso to Section 17 can neither be said to be hypertechnical norpedantic but the same was the requirement of law and condition precedentfor maintainability of application under Order 9 Rule 13.

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

B

The High Court is not right in its view that trial court and RevisionalCourt has taken hypertechnical and pedantic approach while consideringthe application under Order 9 Rule 13 of CPC and Section 5 of theLimitation Act.

56. In view of the foregoing discussions, we are unable to sustainCthe judgment of the High Court dated 13.12.2018. The judgment dated13.12.2018 as well as the order dated 24.05.2019 rejecting the reviewapplication as well as consequential order passed by the trial court dated24.05.2019 are set aside. The order of the trial court dated 19.04.2007rejecting the application under Order 9 Rule 13 of the respondent isDupheld.

57. In view of the facts of the present case especially the factthat the appellant has not been able to reap the benefit of the decreewhich was passed in his favour on 31.03.1998, we direct the ExecutingCourt to execute the decree and put the appellant in possession alongEwith the payment of entire decretal amount up to date within a period ofthree months from the date the copy of judgment is produced before theExecuting Court.

58. The appeals are allowed with costs of Rs.25,000/- to be paidby the respondent to the appellant before the Executing Court.

F

Ankit Gyan

Appeals allowed.

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