Provincial Small Cause Courts Act, 1887 – s.17 r/w Or. IX, r.13 of CPC – Court of Small Causes – Application for setting aside ex-parte decree – Maintainability – Requirement u/s. s.17 of the Act of 1887 of depositing the amount due and payable under the decree at the time of filing application for setting aside ex-parte decree – Respondent, purported owner of a shop, filed suit against the predecessor of appellants, who was a tenant in the shop – The suit was for recovery of arrears of rent and for eviction on ground of default in payment of rent – Trial Court decreed the suit ex-parte with costs – Defendant (predecessor of appellants) moved application u/Or. IX r.13 CPC and also an application u/s.17 of the Act, 1887, alongwith a tender seeking permission to deposit the decretal amount, inclusive of the amount of costs – Objection taken by plaintiff-respondent, that under the decree in question, he was entitled not only to arrears of rent and costs but also to damages until possession continued with the defendant; and necessary deposit towards damages having not been made, the application for setting aside ex parte decree was not maintainable – Trial court upheld the objections of respondent – High Court affirmed the order of trial court – Held: The impugned orders cannot be approved and the appellants deserve an opportunity to contest the suit on merits – A sum of Rs. 8,000/- towards arrears of rent had been quantified in the decree and another sum of Rs. 3,212/- towards costs could have been taken as quantified – Though plaintiff-respondent was further held entitled to receive Rs. 2,000/- per month towards rent/mesne profits during the suit and until getting the actual vacant possession of the suit shop after payment of requisite court fees but, the trial court did not specifically quantify the amount payable by the defendant even until the date of decree – In the circumstances, when the defendant immediately moved the Court after noticing the decree in question and deposited the amount directly quantified thereunder i.e., the sum of Rs. 8,000/- towards arrears of rent and Rs. 3,212/towards costs, totalling to Rs. 11,212/-, while seeking the order for setting aside ex parte decree, it was not a case where the defendant had ignored the requirements of deposit altogether – Moreover, the decree in question had not been merely a money decree but had been for eviction too – The trial court and the High Court viewed the requirements of s.17 of the Act of 1887 from an exacting and rather impractical standpoint and the bonafide attempt of the defendant to seek a merit decision of the suit after due contest was totally ignored – In response to queries of Supreme Court, the appellants immediately took bonafide steps and deposited the amount relatable to rent / mesne profits until the month of April, 2023 – They deserve an opportunity to contest the suit on merits – Accordingly, application filed by appellants-defendants under Or.IX, r.13 CPC allowed – Consequently, suit in question restored for being considered on merits.
Allowing the appeal, the Court
HELD: 1. In relation to the suit to which the Provincial Small Cause Courts Act, 1887 applies, an applicant seeking an order to set aside the decree passed ex parte is required to deposit the amount due under the decree/judgment or has to furnish security for due performance of the decree or compliance with the judgment. Even under Order IX Rule 13 CPC, while making an order for setting aside the decree passed ex parte, the Court may put the defendant to terms as to costs, payment into Court or otherwise. However, these requirements need to be visualized from a practical standpoint and cannot be applied as if to penalize the defendant for every mistake, even if the amount payable is not explicitly quantified in the decree in question. [Para 15][883-E-G]
2. For the purpose of the case at hand, as regards the amount payable, a sum of Rs. 8,000/- towards arrears of rent had been quantified in the decree and another sum of Rs. 3,212/towards costs could have been taken as quantified. Of course, the plaintiff was further held entitled to receive Rs. 2,000/- per month towards rent/mesne profits during the suit and until getting the actual vacant possession of the suit shop after payment of requisite court fees but, the Trial Court did not specifically quantify the amount payable by the defendant even until the date of decree. In the given circumstances, when the defendant, predecessor of the appellants, immediately moved the Court after noticing the decree in question and deposited the amount directly quantified thereunder i.e., the sum of Rs. 8,000/- towards arrears of rent and Rs. 3,212/- towards costs, totalling to Rs. 11,212/-, while seeking the order for setting aside ex parte decree, it had not been a case where the defendant had ignored the requirements of deposit altogether. Moreover, the decree in question had not been merely a money decree but had been for eviction too. Looking to the subject-matter of the suit and the overall circumstances, a practical view was required to be taken and if any further deposit or furnishing of security was considered necessary, appropriate orders could have been passed in that regard. Putting it differently, in terms of Section 17 of the Act of 1887 read with Order IX Rule 13 CPC, the Court could have extended the time for making deposit if so required, or could have put the defendant to the terms of security for performance of the decree. [Para 15.1][883-G-H; 884-A-D]
3.1. The trial court and the High Court viewed the requirements of Section 17 of the Act of 1887 from an exacting and rather impractical standpoint that the bonafide attempt of the defendant to seek a merit decision of the suit after due contest has been totally ignored. In the present set of facts and circumstances, prayer of the defendant to set aside ex parte decree could not have been denied for want of further deposit in terms of the decree in question. [Para 15.2][884-E-F]
3.2. Even if the requirements of Section 17 of the Act of 1887 are held to be mandatory, the present one had not been a case where the defendant had altogether ignored those requirements. [Para 15.3][884-G-H]
3.3. In response to the queries of this Court, the appellants immediately took bonafide steps and deposited the amount which may be relatable to rent/mesne profits until the month of April, 2023. For this bonafide and prompt step (albeit taken after approaching this Court), they do deserve an opportunity to contest the suit on merits, particularly when the matter relates to a shop where the predecessor of the appellants had been continuing as tenant and the plaintiff-respondent is seeking the decree for eviction only on the ground of default in payment of rent. [Para 16][885-C-D]
4. Accordingly, the application filed by the appellants under Order IX Rule 13 CPC is allowed and thereby, the ex parte judgment and decree are set aside. Consequently, the said suit shall stand restored for being considered on its own merits. [Para 17][885-E]
Kedarnath v. Mohan Lal Kesarwari and Ors. 2002 ALL CJ 145 = (2002) 2 SCC 16] : [2002] 1 SCR 144 – held inapplicable.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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