LexSUBODH KUMAR versus SHAMIM AHMED
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A B C D E F G H 1111 [2021] 1 S.C.R. 1111 1111 SUBODH KUMAR v. SHAMIM AHMED (Civil Appeal Nos. 802-803 of 2021) MARCH 03, 2021 [ASHOK BHUSHAN AND R. SUBHASH REDDY, JJ.] Provincial Small Cause Courts Act, 1887 – s.17 – U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 – s. 30(2) – Code of Civil Procedure, 1908 – Or. 9, R.13 – In the year 1994 a suit was filed by the appellant-landlord for possession, rent and mesne profits – Tenant failed to file written statement – The Court passed an order to proceed ex-parte – Thereafter, the tenant filed many applications, which included application u/s. 30(2) of the 1972 Act and deposited rent on various occasions from the year 1997 to 1998 – Ex-parte judgment was passed and case of the landlord was allowed – When appellant-landlord filed an application for execution of ex-parte judgment, the tenant filed an application u/Or.9, R.13 with s.5 of the Limitation Act – No deposit was made u/s. 17 of the 1887 Act – Tenant pleaded that amount deposited u/s.30(2) of the 1972 Act may be treated as amount deposited u/s. 17 of the 1887 Act – The trial Court by order dated 19.04.2007 rejected application u/Or.9, R.13 and s.5 of the Limitation Act – Revision against the said order was also rejected by the District Court – Respondent-tenant filed writ petition – The High Court allowed the writ petition by order dated 13.12.2018 and remanded the matter back to the trial Court for reconsideration of tenant’s application u/Or.9, R.13 and s.5 of the Limitation Act – Aggrieved, the appellant-landlord filed SLP and the same was dismissed and withdrawn – After this order, the review application was filed before the High Court and same was rejected on 24.05.2019 – Before the Supreme Court, the respondent no.1-tenant has filed appeal against the judgment of the High Court dated 13.12.2018 and the order dated 24.05.2019 – Held: The proviso to s.17 of the 1887 Act, gives two options to an applicant against whom an ex-parte decree has been passed or who applied for review of the judgment, i.e., (a) deposit in the Court the amount due from A B C D E F G H 1112 SUPREME COURT REPORTS [2021] 1 S.C.R. him under the decree or in pursuance of the decree; (b) give such security for the performance of the decree or compliance with the judgment as the Court made on the previous application made by him in this behalf directed – In the instant case, where the tenant has filed an application u/Or.9 R.13 on to recall the ex-parte decree – There is no reference of any previous application praying the Court to permit the tenant to give security to satisfy the ex-parte decree – The application was not accompanied by the deposit of the amount due from the tenant under the decree – The said application, thus, was not in accordance with proviso to s.17 – When the condition precedent for presenting the application u/Or.9 R.13 was not fulfilled, the application u/Or.9 R.13 was rightly rejected – As far as amount deposited u/s.30(2) of the 1972 Act is concerned, on the date when application u/Or.9, R.13 was filed, total deposit made by the tenant u/s. 30(2) was only Rs.17,550/- whereas the amount due as per execution application was Rs.21,660/- – Therefore, the tenant had not even deposited u/s.30(2) the total amount due – Further, the deposit of rent u/s. 30(2) the 1972 Act in the present case can not be treated to be deposit for the purposes of proviso u/s. 17 of the Act, 1887 – Thus, judgment dated 13.12.2018 as well as the order dated 24.05.2019 rejecting the review application are set aside – The order of the trial Court dated 19.04.2007 rejecting the application u/Or.9 R. 13 of the respondent is upheld – The Executing Court directed to execute the decree and put the appellant in possession. Allowing the appeals, the Court HELD: 1. Proviso to Section 17 of Provincial Small Cause Courts Act, 1887 has been engrafted with the object that unscrupulous tenants who do not appear in the Court in the suit proceedings should not be allowed to file the application to recall ex-parte decree unless they deposit the entire amount or give security to the Court for compliance of the decree. The proviso is to take care of those tenants who deliberately do not appear in the suit neccesiating the Court to pass ex-parte decree. The object is to protect the landlord and to ensure that the decree passed is satisfied by the tenant, in event, the application under Order 9 Rule 13 is ultimately rejected. Proviso gives
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