Provincial Small Cause Courts Act, 1887 – s.17 – U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 – s. 30(2) – Code of Civil Procedure, 1908 – Or. 9, R.13 – In the year 1994 a suit was filed by the appellant-landlord for possession, rent and mesne profits – Tenant failed to file written statement – The Court passed an order to proceed ex-parte – Thereafter, the tenant filed many applications, which included application u/s. 30(2) of the 1972 Act and deposited rent on various occasions from the year 1997 to 1998 – Ex-parte judgment was passed and case of the landlord was allowed – When appellant-landlord filed an application for execution of ex-parte judgment, the tenant filed an application u/Or.9, R.13 with s.5 of the Limitation Act – No deposit was made u/s. 17 of the 1887 Act – Tenant pleaded that amount deposited u/s.30(2) of the 1972 Act may be treated as amount deposited u/s. 17 of the 1887 Act – The trial Court by order dated 19.04.2007 rejected application u/Or.9, R.13 and s.5 of the Limitation Act – Revision against the said order was also rejected by the District Court – Respondent-tenant filed writ petition – The High Court allowed the writ petition by order dated 13.12.2018 and remanded the matter back to the trial Court for reconsideration of tenant’s application u/Or.9, R.13 and s.5 of the Limitation Act – Aggrieved, the appellant-landlord filed SLP and the same was dismissed and withdrawn – After this order, the review application was filed before the High Court and same was rejected on 24.05.2019 – Before the Supreme Court, the respondent no.1-tenant has filed appeal against the judgment of the High Court dated 13.12.2018 and the order dated 24.05.2019 – Held: The proviso to s.17 of the 1887 Act, gives two options to an applicant against whom an ex-parte decree has been passed or who applied for review of the judgment, i.e., (a) deposit in the Court the amount due from him under the decree or in pursuance of the decree; (b) give such security for the performance of the decree or compliance with the judgment as the Court made on the previous application made by him in this behalf directed – In the instant case, where the tenant has filed an application u/Or.9 R.13 on to recall the ex-parte decree – There is no reference of any previous application praying the Court to permit the tenant to give security to satisfy the ex-parte decree – The application was not accompanied by the deposit of the amount due from the tenant under the decree – The said application, thus, was not in accordance with proviso to s.17 – When the condition precedent for presenting the application u/Or.9 R.13 was not fulfilled, the application u/Or.9 R.13 was rightly rejected – As far as amount deposited u/s.30(2) of the 1972 Act is concerned, on the date when application u/Or.9, R.13 was filed, total deposit made by the tenant u/s. 30(2) was only Rs.17,550/- whereas the amount due as per execution application was Rs.21,660/- – Therefore, the tenant had not even deposited u/s.30(2) the total amount due – Further, the deposit of rent u/s. 30(2) the 1972 Act in the present case can not be treated to be deposit for the purposes of proviso u/s. 17 of the Act, 1887 – Thus, judgment dated 13.12.2018 as well as the order dated 24.05.2019 rejecting the review application are set aside – The order of the trial Court dated 19.04.2007 rejecting the application u/Or.9 R. 13 of the respondent is upheld – The Executing Court directed to execute the decree and put the appellant in possession.
Allowing the appeals, the Court
HELD: 1. Proviso to Section 17 of Provincial Small Cause Courts Act, 1887 has been engrafted with the object that unscrupulous tenants who do not appear in the Court in the suit proceedings should not be allowed to file the application to recall ex-parte decree unless they deposit the entire amount or give security to the Court for compliance of the decree. The proviso is to take care of those tenants who deliberately do not appear in the suit neccesiating the Court to pass ex-parte decree. The object is to protect the landlord and to ensure that the decree passed is satisfied by the tenant, in event, the application under Order 9 Rule 13 is ultimately rejected. Proviso gives two options to an applicant against whom an ex-parte decree has been passed or who applied for review of the judgment, i.e., (a) deposit in the Court the amount due from him under the decree or in pursuance of the decree; (b) give such security for the performance of the decree or compliance with the judgment as the Court made on the previous application made by him in this behalf directed. Thus, requirement of the deposit in the court the entire amount can be waived only when the Court on the previous application directs the tenant to give such security for performance of the decree or compliance with the judgment. The application seeking waiver from deposit has been mentioned as “a previous application” i.e. previous to the application filed under Order 9 Rule 13. [Para 22][1121-G-H; 1122-A-C]
2. The present is a case where the tenant has filed an application under Order 9 Rule 13 on 25.08.1998 to recall the ex-parte decree dated 31.03.1998. There is no reference of any previous application praying the Court to permit the tenant to give security to satisfy the ex-parte decree. The application dated 25.08.1998 was not accompanied by the deposit of the amount due from the tenant under the decree dated 31.03.1998. The application dated 25.08.1998, thus, was not in accordance with proviso to Section 17. When the condition precedent for presenting the application under Order 9 Rule 13 was not fulfilled, the application under Order 9 Rule 13 filed by the tenant respondent did not deserve any consideration and had rightly been rejected. [Para 23][1122-D-E]
3. This Court may also notice submission of the the appellant, that the deposit under Section 30(2) of the Act No.13 of 1972 which was due on the date of filing of the application under Order 9 Rule 13 CPC was not the deposit of the entire amount. In the execution application filed on 27.07.1998 by the landlord to execute the decree dated 31.03.1998, the amount which was claimed was Rs.21,660/- which was due till then. [Para 30][1126-B-C]
4. The application under Order 9 Rule 13 CPC was filed on 25.08.1998, i.e., subsequent to filing of the execution application, thus, at least the amount of Rs.21,660/- was due. The tenant respondent has made a deposit under Section 30(2) in July, 1997 of Rs.16,800/- and again Rs.750/- on 18.10.1997 which was rent from 30.06.1997 to 30.11.1997. Thus, on the date when the application was filed under Order 9 Rule 13, total deposit made by the tenant under Section 30(2) was only Rs.17,550/- whereas the amount due as per execution application was Rs.21,660/-. It was only on 25.11.1998, i.e., much after filing of the application under Order 9 Rule 13, the tenant deposited amount of Rs.1,950/- as a rent from 30.11.1997 to 31.12.1998. Thus, even according to the own case of the respondent tenant on the date when application under Order 9 Rule 13 was filed, i.e., 25.08.1998, the tenant had not deposited under Section 30(2) the total amount due, thus, by no stretch of imagination the tenant could have claimed compliance of proviso to Section 17 of Act, 1887. [Para 31][1126-D-E]
5. When the plaintiff had claimed exemption from the operation of the Act No. 13 of 1972, it was specific pleading as noted above, how deposit can be made under Section 30 of the Act by the tenant respondent. Section 2 begin with the expression that ‘Nothing in this Act shall apply’. When there is exemption from the applicability of the Act No.13 of 1972 as pleaded by the plaintiff, Section 30 of the Act shall also not be applicable. When Section 30 itself is not applicable to the building, the deposit claimed to be made under Section 30(2) is wholly irrelevant, for any purposes including for purposes of proviso to Section 17 of Act, 1887. [Para 35][1127-H; 1128-A-B]
6. Therefore, 1) In the application filed by the tenant on 25.08.1998 under Order 9 Rule 13, there was no compliance of Section 17 of 1887 Act and the application was incompetent; 2) The respondent-tenant had not deposited the entire amount due on 25.08.1998 even under Section 30(2) of Act No.13 of 1972; 3) The deposit of rent under Section 30(2) of the Act No.13 of 1972 in the present case cannot be treated to be deposit for the purposes of proviso under Section 17 of the Act, 1887. [Para 42][1131-C-E]
7. The tenant-respondent has not made out any sufficient ground to allow the application under Order 9 Rule 13 and the High Court committed error in interfering with the order of the trial court rejecting such application which was also confirmed by the District Judge. [Para 50][1133-B-C]
8. The trial court has rejected the application of tenant under Order 9 Rule 13 not adopting any hyper-technical and pedantic approach rather on the finding that there was non-compliance of proviso to Section 17 of the Act, 1887, hence, the application deserves to be rejected. Requirement under proviso to Section 17 can neither be said to be hypertechnical nor pedantic but the same was the requirement of law and condition precedent for maintainability of application under Order
9 Rule 13. The High Court is not right in its view that trial court and Revisional Court has taken hypertechnical and pedantic approach while considering the application under Order 9 Rule
13 of CPC and Section 5 of the Limitation Act. [Paras 54 and 55][1133-G-H; 1134-A-C]
Kedarnath versus Mohan Lal Kesarwari and Others (2002) 2 SCC 16 : [2002] 1 SCR 144; Prem Chandra Mishra versus IInd Additional District Judge, Etah, Writ Petition No. 12103 of 1996 decided on 11.09.2008 reported in (2008) 9 ADJ 13; Kailash versus Nanku and Others, reported in (2005) 4 SCC 480 : [2005] 3 SCR 289 – referred to.
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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