KEDARNATH versus MOHAN LAL KESAWARI AND ORS.

Citation: [2002] 1 S.C.R. 144 · Decided: 10-01-2002 · Supreme Court of India · Bench: R.C. LAHOTI · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
KEDARNATH 
v. 
MOHAN LAL KESAWARI AND ORS. 
JANURARY 10, 2002 
[R.C. LAHOTI AND BRIJESH KUMAR, JJ.) 
Code of Civil Procedure, 1908/Provincial Small Cause Courts Act, 
1887-0rder 9 Rule 13/Section 17(/)/Proviso-Ex-parte decree by Court of 
C Small Causes for deposit of arrears of rent and eviction-Application by 
respondent to set aside the decree-Failure by respondent to deposit decretal 
amount or make a previous application seeking permission to furnish 
security-Application to furnish security filed subsequently and after delay--
Maintainability of the main application-Held, the law is mandatory and not 
directory for deposit of decretal amount or filing a previous application-
D Hence, application for setting aside decree not maintainable on account of 
failure to comply with proviso. 
Appellant-landlord filed a suit before a Court of Small Causes for 
recovery of arrears of rent and for eviction against respondent-tenants under 
Section 20 of the U.P. Urban Buildings (Regulation of Letting, Rent and 
E Eviction) Act, 1972. The suit was decreed ex-partefor recovery of arrears of 
rent and eviction. The appellant executed the decree and obtained possession 
of the premises with police help. The respondents filed an application before 
the trial court seeking setting aside of the ex-parte decree under Order 9 
Rule 13 of CPC. Along with the application, the respondents neither deposited 
F the decretal amount before the trial court nor filed an application seeking 
permission to furnish security of the decretal amount. During the course of 
hearing, the appellant contended that the application filed by the respondents 
was not maintainable and liable to be dismissed for non-compliance with the 
proviso to section 17 of the Provincial Small Cause Courts Act, 1887 (PSCC 
Act). The respondents then filed an application before the trial court seeking 
G permission to furnish security for the decretal amount the trial court dismissed 
both the applications. The Court of Additional District Judge, in a revision 
preferred by the respondents, condoned the delay and directed the trial court 
to accept security and decide the application filed under Order 9 Rule 13 CPC 
on merits. A Writ Petition filed before High Court by the appellant was 
H dismissed. 
144 
) 
KEDARNATH v. MOHAN LAL KESA WAR! 
145 
In appeal to this Court, the appellant contended that the proviso to section A 
I 7 of the PSCC Act is mandatory and hence the non-compliance therewith 
cannot be condoned; and that, even assuming the court has power to condone 
the delay, no sufficient cause was made by the respondents. 
Allowing the appeal, the Court 
B 
HELD : 1.1. The object behind establishing the Courts of Small Causes 
conferred with jurisdiction to try summarily such specified category of cases 
which need to be and are capable of being disposed of by adopting summary 
procedure of trial is to secure an expeditious disposal and to curtail the lengthy 
procedure of litigation. The jurisdiction to entertain and hear an application 
to set aside a decree passed ex-parte or for a review of judgment by Courts of C 
small Causes is sought to be qualified and narrowed down by imposing 
condition as to deposit or giving security for performance or compliance by 
enacting proviso to section 17(1) of the Provincial Small Cause Courts Act, 
1887 (PSCC Act). (149-G; 150-A] 
1.2. A bare reading of the provision shows that the legislature has 
chosen to couch the language of the proviso in a mandatory form and there is 
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 of its judgment must be accompanied by a deposit 
D 
in the court of the amount due from the applicant under the decree or in E 
pursuance of the judgment. The proviso 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 security and the nature 
thereof. The proviso does not provide for the extent of time by which such 
application for dispensation may be filed. It may be filed at any time up to the 
time of presentation of application for setting aside ex-parte decree or for F 
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 

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