Supreme Court of India
SUBODH KUMARversusSHAMIM AHMED
- Citation
- 2021 INSC 146
- Decided
- 3 March 2021
- Disposal
- Appeal(s) allowed
- Bench
- ASHOK BHUSHAN
Holding
The application under Order 9 Rule 13 was incompetent because the tenant failed to satisfy the mandatory proviso to Section 17 of the Provincial Small Cause Courts Act, 1887, by neither depositing the full decretal amount nor obtaining prior permission to give security, and therefore the trial court’s rejection was correct.
Summary
In 1994 the landlord filed a suit for possession, rent and mesne profits against the tenant, who failed to file a written statement, leading to an ex‑parte decree in 1998. The tenant later filed an application under Order 9 Rule 13 of the CPC (and Section 5 of the Limitation Act) on 25 August 1998 to set aside the decree, but made no deposit of the decretal amount nor obtained prior permission to give security as required by the proviso to Section 17 of the Provincial Small Cause Courts Act, 1887. The trial court correctly rejected the application; the High Court reversed that decision, which the Supreme Court set aside, holding the tenant’s application was incompetent. The Court also ruled that deposits made under Section 30(2) of the U.P. Urban Buildings Act, 1972 could not be treated as compliance with the proviso to Section 17, especially since the Act was inapplicable to the premises. Consequently, the decree was ordered to be executed in favour of the landlord.
Issues considered
- Whether the tenant’s application under Order 9 Rule 13 CPC complied with the proviso to Section 17 of the Provincial Small Cause Courts Act, 1887
- Whether the tenant had deposited the entire amount due on 25 August 1998 under Section 30(2) of the U.P. Urban Buildings Act, 1972
- Whether a deposit under Section 30(2) of the U.P. Urban Buildings Act, 1972 can be treated as a deposit for the purposes of the proviso to Section 17 of the 1887 Act
- Whether the tenant made sufficient grounds to set aside the ex‑parte decree
- Whether the High Court erred in characterising the trial and revisional courts’ approach as hyper‑technical and pedantic
Legislation cited
Subjects
ex‑parte decreeOrder 9 Rule 13Section 17 provisodeposit requirementsecuritylandlord‑tenant disputeevictionU.P. Urban Buildings Acthyper‑technical approachSmall Causes Court
Judgment
[2021] 1 S.C.R. 1111 1111
SUBODH KUMAR A
v.
SHAMIM AHMED
(Civil Appeal Nos. 802-803 of 2021)
MARCH 03, 2021 B
[ASHOK BHUSHAN AND R. SUBHASH REDDY, JJ.]
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
C
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 D
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
E
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 F
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
G
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
H
1111
1112 SUPREME COURT REPORTS [2021] 1 S.C.R.
A 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
B
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
C 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
D
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
E 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
F 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
G 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
H
SUBODH KUMAR v. SHAMIM AHMED 1113
who applied for review of the judgment, i.e., (a) deposit in the A
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
B
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] 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 D
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 E
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 F
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] G
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
H
1114 SUPREME COURT REPORTS [2021] 1 S.C.R.
A 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
B
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
C 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
D 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
E 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
F 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
G 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
H
SUBODH KUMAR v. SHAMIM AHMED 1115
trial court rejecting such application which was also confirmed by A
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, B
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 C
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 D
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. E
Case Law Reference
[2002] 1 SCR 144 referred to para 24
(2008) 9 ADJ 13 referred to para 36
[2005] 3 SCR 289 referred to para 51 F
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 802-
803 of 2021.
From the Judgment and Order dated 13.12.2018 and 24.05.2019
of 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. G
418 of 2008 respectively.
R.B. Singhal, Sr. Adv., Anupam Mishra, Adv. for the Appellant.
Dr. Sumant Bharadwaj, Ms. Mridula Ray Bharadwaj, Advs. for
the Respondent. H
1116 SUPREME COURT REPORTS [2021] 1 S.C.R.
A The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. Leave granted
2. This appeal has been filed against the judgment of the High
B 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
C 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
D 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,
mis-application of law is bound to happen. We may recall prophetic words
of Mr. Justice Cardozo when he said: -
E
“...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
F 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
G Rs.150/- per month by predecessor-in-title 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
H
SUBODH KUMAR v. SHAMIM AHMED 1117
[ASHOK BHUSHAN, J.]
Additional Civil Judge, Senior Division, Roorkee. On 14.07.1994, the A
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
B
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 ex-parte. On 18.03.1997, the plaintiff- landlord was permitted
to give ex-parte 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, C
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 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 D
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).
E
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 F
by ex-parte judgement dated 31.03.1998. On 27.07.1998, the tenant had
filed an application for execution of ex-parte 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 ex-parte decree dated 31.03.1998. Along with application dated G
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 H
1118 SUPREME COURT REPORTS [2021] 1 S.C.R.
A 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
Act, 1887, and the tenant be granted benefit of Section 17.
10. The appellant landlord filed a detailed objection dated
B 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
C 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 of the trial court and 23.02.2008 of the Revisional
D 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 appellant-landlord 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
E 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 appellant-landlord
before the High Court, which too has been rejected on 24.05.2019. The
appellant- landlord aggrieved by the aforesaid judgments dated 13.12.2018
F and 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, 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.
G
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
H
SUBODH KUMAR v. SHAMIM AHMED 1119
[ASHOK BHUSHAN, J.]
rejected for non-compliance of mandatory provisions of Section 17 A
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 the trial court. He has further
submitted that the application to give the benefit of the amount deposited
B
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 C
30(2) being in joint name which could not be withdrawn by landlord-
appellant 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.
D
15. It is submitted that 25.08.1998 is the date of 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 execution-application 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 E
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 ex-parte against the tenant was unsuccessfully F
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 Court.
16. Dr. Sumant Bharadwaj, appearing for the respondent submits G
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 non-compliance of proviso to Section 17. H
1120 SUPREME COURT REPORTS [2021] 1 S.C.R.
A 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 at the time of filing
application under Order 9 Rule 13. The application filed by the tenant
B
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.
C
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 respondent-tenant
under Order 9 Rule 13, CPC on 25.08.1998, the requirements
D
as contained in Proviso to Section 17 of the Provincial Small
Cause Courts Act, 1887, were complied with?
2) Whether the respondent-tenant had deposited the entire
amount due on 25.08.1998 under Section 30(2) of U.P. Act
No.13 of 1972?
E
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 respondent-tenant has made sufficient ground
to allow the application filed under Order 9 Rule 13 CPC
F 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 hyper-technical
and pedantic approach while considering the application
under Order 9 Rule 13 CPC and Section 5 of the Limitation
G 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
H
SUBODH KUMAR v. SHAMIM AHMED 1121
[ASHOK BHUSHAN, J.]
property by the sale deed dated 30.01.1991 after due permission from A
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.
B
It is useful to refer to 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.” C
21. We may notice Section 17 and its proviso, compliance of which
was required by the tenant- respondent while filing application under
Order 9 Rule 13 CPC. Section 17 is as follows:-
“17.Application of the Code of Civil procedure.- (1) The D
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;
E
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 F
made by him in this behalf, have directed.
(2) Where a person has become liable as surety under the proviso
to sub-section (1), the security may be realized in manner provided
by Section 145 of the Code of Civil Procedure, 1908 (5 of 1908).”
G
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 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 H
1122 SUPREME COURT REPORTS [2021] 1 S.C.R.
A 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
B
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
C 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 25.08.1998 to recall the ex-parte decree dated
D 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
E 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
F versus Mohan Lal Kesarwari and others, (2002) 2 SCC 16. In the
above case, a suit was filed by the landlord 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 ex-parte.
When the decree was put in execution, the tenant moved application
G under Order 9 Rule 13 seeking setting aside ex-parte 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:-
H
SUBODH KUMAR v. SHAMIM AHMED 1123
[ASHOK BHUSHAN, J.]
“1.The appellant-landlord filed a suit for recovery of arrears of A
rent and for eviction against the respondent-tenants on the ground
available under clause (a) of sub-section (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
B
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 the respondent-tenants to pay an amount of Rs.8500 as
pre-suit 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 C
date of recovery of possession. A decree for eviction was also
passed. The decree was put to execution and on 21.02.1998 the
decree-holder 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 respondent-tenants
D
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 E
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 District Judge, the delay was condoned and F
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 G
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 sub-section (1) of
Section 17 has undergone a material change through an
amendment brought in by Act 9 of 1935. Earlier these were the H
1124 SUPREME COURT REPORTS [2021] 1 S.C.R.
A 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 directed”.
B
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 sub-section (1) of Section 17
of the Provincial Small Cause Courts Act, 1887. As the section
C 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’
D 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
E 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 application under Order 9 Rule 13. In
paragraph 8 and 9, following was laid down: -
F
“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
G 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
H security and the nature thereof. The proviso does not provide for
SUBODH KUMAR v. SHAMIM AHMED 1125
[ASHOK BHUSHAN, J.]
the extent of time by which such application for dispensation may A
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
B
delay on the part of the court in passing an appropriate order
would not be held against the applicant because none can 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 payable by the applicant under the decree. The applicant C
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.” D
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. E
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 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 F
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 G
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
H
1126 SUPREME COURT REPORTS [2021] 1 S.C.R.
A nor there was any previous application seeking permission of the Court
to give security. Hence, there being non-compliance 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.
B 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
C 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
D 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
E 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
F 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
G by the respondent tenant. 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
H
SUBODH KUMAR v. SHAMIM AHMED 1127
[ASHOK BHUSHAN, J.]
may deposit the amount if he so likes at his own risk. The parties A
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 respondent-tenant 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. B
34. We have noted the pleadings in the suit that the plaintiff-landlord
has come up with the case that Act No. 13 of 1972 is not applicable. In
the pleadings of the suit, the plaintiff-appellant has claimed the exemption
from the operation of the Act 13 of 1972, ten years of construction being
not completed. Section 2 of Act No. 13 of 1972 provides:- C
“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, D
24-B, 24-C or sub-section (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
E
Government or the Life Insurance Corporation of India or a bank
or a co-operative 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 sub-section to the period of ten years shall be deemed to be a
reference to the period of fifteen years or the period ending with F
the date of actual repayment of such loan or advance (including
interest), whichever is shorter.:
Provided further that where construction of a building is completed
on or after April 26, 1985 then the reference in this sub-section to
the period of ten years shall be deemed to be a reference to a G
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. H
1128 SUPREME COURT REPORTS [2021] 1 S.C.R.
A 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,
B
1887.
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,
C 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
D 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
E Court: -
“...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
F 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
non-compliance 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
G (a) of sub-Section (2) of Section 20 by the tenant on the first
hearing of the suit unconditionally and amount which is already
deposited under Sub-Section (1) of Section 30 of U.P. Act No.
XIII of 1972 is liable to be deducted for enabling tenant to save
eviction. Sub-Section (6) of Section 20 clearly provide that any
H amount deposited by the tenant under Sub-Section (4) or under
SUBODH KUMAR v. SHAMIM AHMED 1129
[ASHOK BHUSHAN, J.]
Rule 5 of Order VX of the First Schedule to the Code of Civil A
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 Sub-Section (4) of
Section 30 provides that on any deposit which are made under
Section 30 the amount in question which has been deposited can
B
be withdrawn on an application made in this behalf and further
sub-Section (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 sub-section (1) or to the landlord in the
case referred to in sub-section (2). Thus, deposits which are made C
under 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 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...”
D
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/ E
- 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 F
has been passed application to recall ex-parte 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 G
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 H
1130 SUPREME COURT REPORTS [2021] 1 S.C.R.
A 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
B
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 Provincial Small Cause Courts Act 1887, inasmuch as
nothing new has been sought to be done after expiry of the period
C 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
D
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)
E 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
F 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.”
39. The perusal of the judgment indicate that the said was a case
G 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
H Act No.13 of 1972 is not applicable, there is no question of deposit under
SUBODH KUMAR v. SHAMIM AHMED 1131
[ASHOK BHUSHAN, J.]
Section 30 nor deposit under Section 30 can be said to be valid deposit. A
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 present B
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 C
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 respondent-tenant had not deposited the entire amount D
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 not be treated to be deposit for the
purposes of proviso under Section 17 of the Act, 1887. E
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
F
case was rightly rejected by the trial court is a question to be considered.
44. We have noticed above that prior to ex-parte decree dated
31.03.1998, trial court had already passed two orders to proceed ex-
parte on 24.02.1997 and 18.03.1997. The tenant respondent had filed 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 G
application 44Ga filed by the tenant to recall the ex-parte 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
H
1132 SUPREME COURT REPORTS [2021] 1 S.C.R.
A 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
B 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
C Order 9 Rule 13.
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.
D
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 ex-parte decree. We may further hold that even in
the case where there is a compliance of proviso to Section 17, the
E application filed under Order 9 Rule 13 to set aside the decree passed
ex-parte or for review of the judgment cannot be automatically granted.
The compliance of proviso to Section 17 is a Pre- condition 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
F to set aside the ex-parte decree. The present is a case where no sufficient
cause was made out to set aside the ex-parte 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
ex-parte. The application of the tenant to recall the orders dated
G 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
H
SUBODH KUMAR v. SHAMIM AHMED 1133
[ASHOK BHUSHAN, J.]
recorded against the tenant, choose to allow the application under Order A
9 Rule 13 filed by the tenant to recall ex-parte 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 tenant-respondent has not made out any sufficient ground to B
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 C
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 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 D
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 E
present case. Present was not a case where there was any procedural
breach at the part of tenant-respondent. The tenant-respondent 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 F
following observations:-
“20. Since the learned Courts below have adopted a hyper-
technical 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 G
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 hyper-technical and pedantic approach rather on
the finding that there was non-compliance of proviso to Section 17 of H
1134 SUPREME COURT REPORTS [2021] 1 S.C.R.
A 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.
55. The question no.5 is answered as follows:
B 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
C 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
D 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 passed in his favour on 31.03.1998, we direct the Executing
Court to execute the decree and put the appellant in possession along
E 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.
F
Ankit Gyan Appeals allowed.
G
H
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