Shorn of unnecessary details and briefly put, the relevant background aspects of the matter are that the respondent herein, asserting his capacity as owner and proprietary right holder, filed the suit REPORTABLE 2 aforesaid against the late father of present appellants in the Small Causes Court, stating that the defendant was a tenant in the suit shop at a monthly rent of Rs. It appears that in the said civil suit, the Trial Court held the service of summons on the defendant sufficient and proceeded ex parte for want of appearance on behalf of the defendant; and after taking evidence, on 09.03.2016, decreed the suit with costs, for recovery of arrears of rent in the sum of Rs. He also moved an application under Section 17 of the Provincial Small Cause Courts Act, 1887 (‘the Act of 1887’), alongwith a tender seeking permission to deposit the decretal amount to the tune of Rs.
Also Read: https://newslaw.in/case-type/civil/courts-analysis-on-bona-fide-requirement-in-eviction-petitions/
The Trial Court took note of the respective submissions of the parties and upheld the objections of the plaintiff-respondent while observing, inter alia, as under: – “The applicant Mata Prasad by submitting an application 7g2 in the file of the present Miscellaneous Suit applied for depositing the decretal amount Rs. Apart from it, it is also mentioned in the decree that until the defendant gives the possession and occupation of the shop in question by vacating it to the plaintiff, till then, compensation of use @ Rs. 11,212/- has been deposited by him, the balance amount which was payable by the applicant Mata Prasad to the Opposite Party in compliance of the aforesaid decree and judgment, in that regard, neither any amount has been deposited by the applicant Mata Prasad and nor any permission has been sought from the court by filing any application with regard to submitting any undertaking about the compliance of it. In such situation, it is the opinion of the Court that the instant Miscellaneous Civil Suit due to not complying with Section 17 of the Provincial Small Causes Court Act, 1887 is liable to be dismissed and the preliminary objection application 36g2 filed by the Opposite Party is liable to be allowed.” Being aggrieved by the aforesaid order dated 01.09.2022, appellants approached the High Court by filing a petition under Article 227 5 of the Constitution of India, inter alia, with the submissions that the defendant had not been served in the said civil suit, and the plaintiff- respondent obtained the decree with concealment of facts. Admittedly, the petitioners did not comply with the provisions of Section 17 of the Act, 1887, which provides that the applicant, at the time of presenting the application, shall deposit in Court the amount due from him under the decree or in pursuance of the judgment, or give such security for the performance of the decree or compliance with the judgment 6 as the Court may, on a previous application made in this behalf, had directed.
The Apex Court in the case of Kedar Nath(supra) has held the provisions of Section 17 of the Act, 1887 to be mandatory, as per the observations in the judgment, which, for the sake of convenience, are reproduced below:- “In the case at hand, the application for setting aside ex parte decree was not accompanied by deposit in the court of the amount due and payable by the applicant under the decree.
While considering the petition leading to this appeal at the initial stage yesterday, i.e., on 01.02.2023 and after taking note of all the facts and circumstances of the case, when this Court learned queried counsel for the appellants regarding the amount towards rent/mesne profits until now due, it was submitted that appellants were ready and willing to immediately deposit the amount so due and, at request, the matter was adjourned for a day.
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It has been pointed out that today, a sum of Rs.1,90,000/- (Rupees One Lakh Ninety Thousand) has been deposited by the appellants in the Trial Court, in compliance of this Court’s order dated 01.02.2023, which is said to be the amount further payable under the decree in question, being that of rent/mesne profits @ Rs.
Per contra, l earned counsel for the respondent has duly supported the orders impugned and has contended that for want of specific compliance of the requirements of Section 17 of the Act of 1887 at the time of filing of the application for setting aside ex parte decree, the view as taken by the Trial Court, duly affirmed by the High Court, cannot said to be unjustified. — (1) The procedure prescribed in the Code of Civil Procedure, 1908 (5 of 1908), shall save in so far as is otherwise provided by that Code or by this Act, be the procedure followed in a Court of Small Causes, in all suits cognizable by it and in all proceedings arising out of such suits: Provided that an applicant for an order to set aside a decree passed ex parte or for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed. Setting aside decree ex parte against defendants.-
In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim. 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. 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. Putting it differently, in terms of Section 17 of the 11 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. The High Court, while dismissing the petition filed by the appellants and endorsing the views of the Trial Court, has proceeded to rely upon the decision of this Court in the case of Kedarnath (supra), that the provisions of Section 17 of the Act of 1887 are held to be mandatory.
Apart from the above, where we find that the Trial Court and the High Court had taken too technical and impractical a view of the matter, there is another strong reason for which we are inclined to accept the prayer for setting aside the decree passed ex parte in this case. Further, in the interest of justice, it is also considered appropriate and hence provided that it shall be required of the appellants to submit their written statement(s) on or before 28.02.2023 and thereafter, the Trial Court shall proceed with expedition, as indicated above.
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The parties through their respective counsel shall stand at notice to appear before the Trial Court on 28.02.2023.
Case Title: SHYAM KUMAR GUPTA Vs. SHUBHAM JAIN (2023 INSC 98)
Case Number: C.A. No.-000765-000765 / 2023
