MOHD.HAFEEZ Vs. CHANDRA MOHAN SRIVASTAVA

JUDGEMENT

(1.) Heard Mr. M.A. Khan, Senior Advocate assisted by Mr. M.U. Khan, learned Counsel for the Revisionist and Mr. Bireshwar Nath, learned Counsel for the opposite party. Brief facts of the present case are that the opposite party alongwith Smt. Shambhu Rani, his mother filed a S.C.C. Suit No. 2 of 1999 on 15.9.1999 against the Revisionist for arrears of rent for a sum of Rs. 1,00,623.50 and ejectment, which was decreed ex parte vide judgment dated 30.4.2004. On coming to know the aforesaid ex parte judgment, the Revisionist moved an application under Order IX, Rule 13 of the Code of Civil Procedure on 28.4.2006. Further, alongwith the application for setting aside the ex parte decree, the Revisionist made an application under section 17 of the Provincial Small Causes Courts Act. The Trial Court rejected the application under Order IX, Rule 13 C.P.C. vide order dated 15.2.2007 on the ground that it is incumbent upon the Revisionist to first prefer an application under section 17 of the Provincial Small Causes Courts Act and it is only thereafter the application under Order IX, Rule 13 of the Code of Civil Procedure is entertainable.

(2.) Being aggrieved, the instant Revision has been filed on the ground that the proviso to section 17 of the Act envisages that an application for an order to set aside decree ex parte or for a review of a judgment shall, at the time of presenting the 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 his behalf, if directed. The Revisionist having made an application seeking permission of the Court to furnish the security and the learned Court below on a sheer misreading of section 17 rejected the application under Order IX, Rule 13 read with section 151 of the Code of Civil Procedure on a sheer misconception of law.

(3.) It is not in dispute that the decree has been passed ex parte and a bare reading of the provisions of section 17 of the Provincial Small Causes Courts Act show that the Legislature has chosen to couch the language of the proviso in a mandatory form. The provision as to deposit can be dispensed with by the Court in its discretion subject to a previous application by the applicant seeking security. The Revisionist having made an application, seeking a direction of the Court to furnish security alongwith application under Order IX, Rule 13 and the Court below has acted illegally with material irregularity in rejecting the application merely on the ground that the Revisionist ought to have deposited the entire decreetal amount. Proviso to section 17 of the Act provides that either an applicant making application to set aside the decree passed ex parte has to deposit the amount in cash or to seek permission of the Court to furnish the security as directed by the Court. The Revisionist having made an application, seeking direction of the Court to furnish the security alongwith an application for setting aside ex parte decree and the Court below rejected the application on a sheer misconception of law as well as the law laid down in this behalf by the Apex Court as well as this Court.