SHEO DUTT Vs. XTH ADDL DISTRICT JUDGE ALIGARH

JUDGEMENT

(1.) ANJANI Kumar, J. This is a writ petition under Article 226 of the Constitution of India challenging the orders dated 13-2-98 and 12-10-98, Annexure Nos. 3 and 5 respectively. The petitioner who is tenant was defendant in the suit filed by Respondent Nos. 3 to 7 for ejectment, arrears of rent and damages. The said suit was decreed ex parte against the petitioner. The petitioner preferred an application under Order IX, Rule 13 of the CPC for setting aside ex parte decree. Since the suit was a small cause suit, the provision of the Provincial Small Cause Courts Act are applicable. This is admitted fact that the petitioner has not complied with the proviso to Section 17 of the Provincial Small Cause Courts Act while filing the application under Order IX, Rule 13 CPC for setting aside ex parte decree. The trial Court rejected the petitioner's application for non-compliance of the proviso to Section 17 of the Provincial Small Cause Courts Act referred to above and also on merits. Aggrieved thereby the petitioner preferred a revision before the revisional authority under Section 25 of the said Act. The revisional authority confirmed the finding recorded by the trial Court and has found that no error committed by the trial Court in rejecting the petitioner's application under Order IX, Rule 13 CPC as the petitioner has not complied with the proviso to Section 17 of the Provincial Small Cause Courts Act and thus rejected the revision filed by the petitioner and confirmed the order passed by the trial Court. Learned Counsel for the petitioner argued that the application for furnishing security under Section 17 of the Provincial Small Causes Court Act can be filed even after filing of the application under Order IX, Rule 13 CPC. He therefore, contended that the Courts below have committed error of law in refusing to consider the application filed by the petitioner under Order IX, Rule 13 CPC. For this purpose the learned Counsel placed reliance of a decision of this Court reported in 1991 (2) Allahabad Rent Cases 545, Suresh Chand v. VIIth Addl. District Judge, Muzaffarnagar and others. Para 12 of the said judgment which is relied upon by the petitioner is reproduced as below : "the provisions of Section 17 of the Act are only procedural. The Legislature intended that when an ex parte decree is sought to be set aside the judgment debtor should deposit the decretal amount either in cash or to give security for performance of the decree. It is only to protect the interest of the decree holder. If the contention of the learned Counsel for the respondent is accepted that would frustrate the object of Section 17 of the Act itself. The use of the words previous application is only directory and not mandatory. The only duty cast upon the Court is to ensure, that on the date of allowing the application under Order IX, Rule 13 CPC the entire decretal amount has been deposited or the security has been furnished for the performance. Thus, I am of the view that it was not necessary that the application under Section 17 of the Act may be filed first, to be followed by the application under Order IX, Rule 13 CPC. "

(2.) A bare perusal of proviso to Section 17 will demonstrate that no application under Order IX, Rule 13 CPC for setting aside ex parte decree can be filed unless the proviso to Section 17 is complied with. In this view of the matter the compliance of the proviso to Section 17 is mandatory.

(3.) IN view of what has been stated above, this writ petition has no merit. It is accordingly, dismissed. The interim order, if any, shall stand vacated. Petition dismissed. .