SHAHJAHAN BEGUM Vs. NIGAR KAUSER

JUDGEMENT

(1.) Heard learned Counsel for the parties and perused the record.

(2.) The Petitioner had filed an application under Order 9 Rule 13 of the Code of Civil Procedure in the Court of Judge Small Cause Court, Kanpur Nagar for setting aside the ex parte judgment and decree dated 28th March, 2006 passed in favour of the Respondent where by the S.C.C. suit No. 188 of 2005 was decreed ex parte. The said application of the Petitioner was registered as Misc. Case No. 48/74/2006 Smt. Shahjahan Begum v. Smt Nigar Kauser. Before filing the said application the Petitioner appears to have presented a tender for an amount of Rs. 12,254 in compliance of the provisions of Section 17 of the Provincial Small Cause Court Act i.e. on the same date when the application under Order 9 Rule 13 of the Code of Civil Procedure was filed. An application was moved stating that the Petitioner has deposited the tender on 18th August, 2006 which may be accepted towards compliance of Section 17 of the Act. The Court below allowed the said application of the Petitioner. Respondent filed her objection stating that the entire amount has not been deposited as the Petitioner had not paid the accrued damages pendentelite interest and mesne profit which forms a part of the decree. He further prayed that the application for setting aside the ex parte judgment be dismissed for want of compliance of Section 17 Code of Civil Procedure. The Court below in the circumstances called for a report from the Munsarim who vide his report dated 30th August 2006 reported that a sum of Rs. 16,273 was to be deposited by the tenant, however who has deposited only a sum of Rs. 12,254 with deficiency of Rs. 4,019/-. An application thereafter was moved by the Petitioner stating that payment of balance amount towards decretal amount be accepted. It was opposed by the land-lady on the ground that the entire amount had to be deposited alongwith application on the first date of hearing. The Court below dismissed the application by its order dated 25.9.2006. Aggrieved by the aforesaid order the Petitioner preferred a revision No. 59 of 2006 under Section 25 of the Act inter alia stating that the Court below has committed an illegality and mis-interpreted the provisions of Section 17 of Small Causes Courts Act as the Court below has not taken into account the rent deposited under Section 30 of U.P. Act XIII of 1972 which stood deposited upto the month of August, 2005 over and above the amount of Rs. 12,254/- which was deposited by the Petitioner. The Revisional Court dismissed the revision. Holding that Section 17 of the said Act provides for the applicability of Code of Civil Procedure and a proviso has been inserted whereby the entire amount due under the decree has to be deposited or security has to be given for the performance of the decree, before the application can be heard. It is contended by the counsel for the Petitioner that in the present case the Courts below have taken a narrow view of the provisions of Section 17 of the Act and have not taken into account the deposits made by the Petitioner under Section 30 of U.P. Act No. XIII of 1972 which if taken into consideration would equal to the amount due under the decree passed in favour of the Respondent. The only contention raised by the counsel for the Petitioner is that he had deposited the balance amount on the subsequent date if the report was received in deposit amount of rent hence he should be given benefit of Section 17 of the Small Cause Courts Act.

(3.) Per Contra Sri Manish Tandon, learned Counsel for the Respondent has relied upon the judgment rendered in Civil Revision No. 741 of 2003, Jai Prakash Pandey v. Babloo Lal Jaiswal, decided on 5.9.2009 by His Lordshi Prakash Krishna, J. wherein with regard to proviso to Section 17 of Small Causes Court Act observed and and held thus: