LALJI GUPTA Vs. ADDL DISTRICT JUDGE/SPL JUDGE

JUDGEMENT

(1.) The respondent No. 3 filed a Suit No. 54 of 1994 in the Court of Small Causes for eviction and arrears of rent against petitioners. The suit was decreed ex parte on 30.9.1994. The petitioners filed an application under Order 9, Rule 13, Civil Procedure Code and also an application under Section 17 of the Provincial Small Cause Courts Act for setting aside the ex parte judgment and order and with the prayer that security bond submitted by the petitioners may be accepted for compliance of Section 17 of the Act. The said application was numbered as Misc. Application No. 149 of 1994. By an order dated 10.11.1994, the trial Court directed the petitioners to deposit half of the decretal amount in cash and to submit security bond with respect to the half of the decretal amount. The petitioners thereafter deposited Rs. 3600 in cash and by an application prayed that security bond already filed for Rs. 7200/- may be accepted for the compliance of half of the decretal amount. By an order dated 31.1.1996 the aforesaid Misc. Application No. 149 of 1994 was rejected by the Judge Small Causes. The petitioners thereafter filed a revision being Revision No. 93 of 1996 under Section 25 of the Provincial Small Cause Courts Act which has also been dismissed by the judgment and order dated 12.5.1997. The petitioners by means of the present writ petition seek quashing of the aforesaid orders as also to set aside the ex parte decree dated 30.9.1994.

(2.) Learned Counsel for the petitioners submitted that provisions of Section 17(1) of the Act are procedural in nature and, therefore, must be liberally construed and placed reliance upon a decision of this Court in the case of Qazi Niyamat Ullah v. VIth Addl. District Judge reported in 1993 (1) ARC 151 : 1993 All LJ 489. He has also contended that an application under Section 17 of the Act need not be filed before the application under Order 9, Rule 13, Civil Procedure Code and, therefore, an application for setting aside the ex parte decree cannot be dismissed on the ground that it was filed before the filing of the application for furnishing security. He has placed reliance upon decision of this Court in the case of Suresh Chand v. VIIth A.D.J., Muzaffarnagar reported in 1991 (2) ARC 545 and Khursheed v. 1st Addl. District Judge, reported in 1988 (2) ARC 363. While relying upon the decision in the case of Balvir Singh Chauhan v. Vijai Kumar Agrawal reported in 1987 (1) ARC 336 he has contended that an ex parte decree can be set aside under Section 151, Civil Procedure Code and an application under Order 9, Rule 13, Civil Procedure Code may not be required and, therefore, there would be no question of non-compliance of Section 17(1) of the Act. He has further submitted that if an application for setting aside ex parte decree has been filed within limitation but without security, which was filed subsequently it would amount to substantial compliance of Section 17 of the Act. For the aforesaid purpose he has cited a decision of this Court in the case of Prabhu Dayal v. District Judge, Saharanpur reported in 1983 ARC 757. It is his contention that even if the amount of deposit falls short it would not amount to non-compliance of the requirements of Section 17 of the Act if the shortfall was subsequently deposited and has relied upon a decision of this Court in the case of Mahanand Maheshwari v. U.P. Electricity Board reported in 1982 ARC 41 (sic). It has been contended that an application under Order 9, Rule 13, Civil Procedure Code must be construed liberally and even if there has been negligence on the part of a party, the other party can be compensated by cost and has cited the decision of the Hon'ble Supreme Court in the case of G.P. Srivastava v. R.K. Raizada reported in 2000 ACJ 1390 : 2000 All LJ 863.

(3.) Learned Counsel for the respondents on the other hand submitted that provisions of Section 17(1) of the Act are mandatory and if the requirements are not complied then the application under Order 9, Rule 13, Civil Procedure Code would not be maintainable. He has stated that in the present case provisions of Section 17(1) of the Act were not complied with by the petitioners and, therefore, both the Courts below have rightly denied the relief to them and his application under Order 9, Rule 13, Civil Procedure Code has been rightly dismissed. In support of his contention he has placed reliance upon the decision of Hon'ble Supreme Court in the case of Kedar Nath v. Mohan Lal Kesarwani reported in ; Jagdish v. District Judge Budaun, reported in ; Sagir Khan v. District Judge, Farukkhabad reported in 1996 (1) ARC 414; in the case of Ram Chandra v. IXth Additional District Judge, Varanasi reported in 1991 (1) ARC 501 : 1991 All LJ 551; Purshottam v. Additional Sessions Judge, reported in 1991 (1) ARC 129; Mohammad Yasin v. Jai Prakash reported in 1988 (2) ARC 575 : AIR 1989 NOC 197.