SHYAM KUMAR GUPTA & ORS. versus SHUBHAM JAIN

Citation: [2023] 4 S.C.R. 873 · Decided: 02-02-2023 · Supreme Court of India · Bench: DINESH MAHESHWARI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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[2023] 4 S.C.R. 873
873
SHYAM KUMAR GUPTA & ORS.
v.
SHUBHAM JAIN
(Civil Appeal No. 765 of 2023)
FEBRUARY 02, 2023
[DINESH MAHESHWARI AND BELA M. TRIVEDI, JJ.]
Provincial Small Cause Courts Act, 1887 – s.17 r/w Or. IX,
r.13 of CPC – Court of Small Causes – Application for setting aside
ex-parte decree – Maintainability – Requirement u/s. s.17 of the Act
of 1887 of depositing the amount due and payable under the decree
at the time of filing application for setting aside ex-parte decree –
Respondent, purported owner of a shop, filed suit against the
predecessor of appellants, who was a tenant in the shop – The suit
was for recovery of arrears of rent and for eviction on ground of
default in payment of rent – Trial Court decreed the suit ex-parte
with costs – Defendant (predecessor of appellants) moved
application u/Or. IX r.13 CPC and also an application u/s.17 of the
Act, 1887, alongwith a tender seeking permission to deposit the
decretal amount, inclusive of the amount of costs – Objection taken
by plaintiff-respondent, that under the decree in question, he was
entitled not only to arrears of rent and costs but also to damages
until possession continued with the defendant; and necessary deposit
towards damages having not been made, the application for setting
aside ex parte decree was not maintainable – Trial court upheld the
objections of respondent – High Court affirmed the order of trial
court – Held: The impugned orders cannot be approved and the
appellants deserve an opportunity to contest the suit on merits – A
sum of Rs. 8,000/- towards arrears of rent had been quantified in
the decree and another sum of Rs. 3,212/- towards costs could have
been taken as quantified – Though plaintiff-respondent was further
held entitled to receive Rs. 2,000/- per month towards rent/mesne
profits during the suit and until getting the actual vacant possession
of the suit shop after payment of requisite court fees but, the trial
court did not specifically quantify the amount payable by the
defendant even until the date of decree – In the circumstances, when
the defendant immediately moved the Court after noticing the decree
in question and deposited the amount directly quantified thereunder
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SUPREME COURT REPORTS
[2023] 4 S.C.R.
i.e., the sum of Rs. 8,000/- towards arrears of rent and Rs. 3,212/-
towards costs, totalling to Rs. 11,212/-, while seeking the order for
setting aside ex parte decree, it was not a case where the defendant
had ignored the requirements of deposit altogether – Moreover, the
decree in question had not been merely a money decree but had
been for eviction too – The trial court and the High Court viewed
the requirements of s.17 of the Act of 1887 from an exacting and
rather impractical standpoint and the bonafide attempt of the
defendant to seek a merit decision of the suit after due contest was
totally ignored – In response to queries of Supreme Court, the
appellants immediately took bonafide steps and deposited the
amount relatable to rent / mesne profits until the month of April,
2023 – They deserve an opportunity to contest the suit on merits –
Accordingly, application filed by appellants-defendants under Or.IX,
r.13 CPC allowed – Consequently, suit in question restored for being
considered on merits.
Allowing the appeal, the Court
HELD: 1. In relation to the suit to which the Provincial
Small Cause Courts Act, 1887 applies, an applicant seeking an
order to set aside the decree passed ex parte is required to
deposit the amount due under the decree/judgment or has to
furnish security for due performance of the decree or compliance
with the judgment. Even under Order IX Rule 13 CPC, while
making an order for setting aside the decree passed ex parte,
the Court may put the defendant to terms as to costs, payment
into Court or otherwise. However, these requirements need to
be visualized from a practical standpoint and cannot be applied
as if to penalize the defendant for every mistake, even if the
amount payable is not explicitly quantified in the decree in
question. [Para 15][883-E-G]
2. For the purpose of the case at hand, as regards the
amount payable, a sum of Rs. 8,000/- towards arrears of rent had
been quantified in the decree and another sum of Rs. 3,212/-
towards costs could have been taken as quantified. Of course,
the plaintiff was further held entitled to receive Rs. 2,000/- per
month towards rent/mesne profits during the suit and until getting
the actual vacant

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