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Arti Dixit & Others v/s Dr. Sushil Kumar Mishra & Others

    Matters Under Article 227 No. 2175 of 2021

    Decided On, 19 August 2021

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE SIDDHARTH

    For the Petitioner: Rajesh Mishra, Abhishek Dixit, Advocate, M.D. Singh Shekhar, Senior Advocate. For the Respondent: Anand Kumar Srivastava, Shiv Bahadur Singh, Advocates.



Judgment Text

1. Heard Sri M.D. Singh Shekhar, learned Senior Counsel assisted by Sri Rajesh Mishra and Abhishek Dixit, learned counsels for the petitioners and Sri Atul Dayal, learned Senior counsel assisted by Sri Anand Kumar Srivastava, learned counsels for the respondent no. 1 and Dr. Shiv Bahadur Singh, learned counsel for respondent nos. 2/1, 2/2, 2/3, 2/4 and respondent no. 3.

2. This petition has been filed under Article 227 of the Constitution of India praying for setting aside the order dated 01.08.2017 passed by First Additional District Judge, Kanpur Nagar, in Revision No. 82 of 2016 filed by the respondent; setting aside the order dated 11.02.2019 passed by Judge Small Causes Court, Kanpur Nagar; setting aside the order dated 26.02.2021 passed by First Additional District Judge, Kanpur Nagar in Revision No. 34 of 2019 and the order dated 09.03.2021 passed by Fourth Additional District Judge, Kanpur Nagar in Execution Case No. 01 of 2013.

3. Plaintiff-respondent no. 1, Dr. Sushil Kumar Mishra, instituted SCC Suit No. 27 of 2012 before the District Judge / Judge Small Causes Court, Kanpur Nagar, against the defendants-petitioners praying for a decree of ejectment and recovery of arrears of rent taxes, damages, etc., on the ground that the defendant nos. 1 to 3, were the tenants of House No. 120/551, Shivaji Nagar, Kanpur Nagar and the plaintiffs are the co-owners in possession of the same. Defendant nos. 4 and 5 are the real brothers of the plaintiff and are proforma parties. The husband of the defendant no. 1 and father of defendant nos. 2 and 3, Late Baldev Prasad Dixit, was tenant of the first floor of the aforesaid house in three rooms, one kitchen, latrine-bathroom and store at the rent of Rs. 1,200/- per month along with tax. The tenancy started from first day of the month and ended on the last date of the same. After the death of Baldev Prasad Dixit, defendant nos. 1, 2 and 3, succeeded to his tenancy. The aforesaid house was owned by the mother of the plaintiff and after her death first floor of the same came in the share of the plaintiff no. 1. The defendant nos. 1, 2 and 3 stopped the payment of rent and taxes from 01.09.2005 and made temporary construction in the open verandah and made a new latrine in front of the stairs. They also occupied the "du chhati" adjacent to the stairs. A legal notice dated 08/09.12.2011 was sent by the counsel for the plaintiff to the defendant nos. 1 to 3 which was served on them. Even after the lapse of one month's time given in the notice neither the rent was paid nor possession of the property was given. Hence, the suit was instituted. The defendant nos. 1 to 3 did not appeared in it and the suit was directed to proceed ex-parte by the order dated 27.07.2012.

4. The defendant nos. 4 and 5 filed their written-statements and admitted that the defendant nos. 1 to 3 are the tenants of the plaintiff. The property initially belonged to their mother, Late Shakuntala Devi Mishra and now the plaintiff is the owner in possession of the first floor of the same.

5. By the judgment and decree dated 18.10.2012 the suit of the plaintiff was decreed ex-parte by the trial Court. On 06.05.2014 defendants made an application under Section 17 of the Provincial Small Cause Courts Act, Paper No. 8 Ga, praying that out of the total decretal amount of Rs. 98,624/-, Rs.12,600/- has been deposited under section 30(1) of U.P. Act no. 13 of 1972. For the remaining amount of Rs. 86,024/- tender of Rs. 36,024/- is being annexed and for remaining amount of Rs. 50,000/- permission for furnishing surety may be granted. Another application under Order 9, Rule 13 read with Section 151 C.P.C, Paper No. 4 Ga, was also filed before the Court on the same day i.e., 06.05.2014 praying for setting aside the ex-parte judgment and decree dated 18.10.2012 by the defendants. On 12.05.2014 another application, Paper No. 14 Ga, was filed praying that defendants have already deposited Rs. 36,024/- by way of tender and security being filed with the application may be taken on record which was allowed on 24.05.2014.

6. The trial Court by the order dated 23.09.2015 found that the surety furnished by the defendants along with application 14 Ga on 24.05.2014 is not in accordance in law and the application under Section 17 of Provincial Small Cause Courts Act, Paper No. 8 Ga, filed on 06.05.2014 was not pressed before the Court, therefore, court found no justification for passing order on application under Order 9, Rule 13 C.P.C., and it was accordingly dismissed.

7. Defendants-petitioners approached this Court against the order dated 23.09.2015 passed by the trial Court by way of SCC Revision No. 360 of 2015 which was disposed of on 03.12.2015 relying on the statement of counsel for the plaintiff with the direction that once the surety has been accepted by the Court below, the matter may be decided expeditiously.

8. By the order dated 07.12.2016, the restoration application 4-C under Order 9, Rule 13 C.P.C of the defendant was allowed and ex-parte judgment and decree dated 18.10.2012 of the trial Court was set aside on the cost of Rs. 1,500/-.

9. The plaintiff preferred a SCC Revision No. 82 of 2016 against the order dated 07.12.2016 passed by the trial Court allowing restoration application 4-C of the defendants-petitioners which was allowed and the orders dated 23.09.2015 and 07.12.2016 passed by the trial court were set aside and it was directed that in the light of the objections of the plaintiff, the trial court should first decide whether the application under Section 17 of the Provincial Small Causes Court Act filed by the defendants and the surety furnished was in accordance with law. After hearing the parties trial Court was directed to pass appropriate order on the restoration application of the defendants. The trial Court by its order dated 11.02.2019 found that the application under Section 17 of the Provincial Small Cause Courts Act filed by the defendants was not in accordance with law. There was deficiency in the deposit made before the Court and the defendant cannot be permitted to rectify the same at this stage.

10. Aggrieved by the order dated 11.02.2019 passed by the trial Court a SCC Revision No. 34 of 2019 was preferred by the defendants which was decided by the judgment and order dated 26.02.2021 by the revisional court holding that the deficiency in deposit of security will result in dismissal in application under Section 17 of the Provincial Small Cause Courts Act and aggrieved by the same, the defendants-petitioners have approached this Court.

11. Learned Senior Counsel for the defendants-petitioners has submitted that after coming to know of the ex-parte decree passed by the trial Court dated 18.10.2012 applications under Section 17 of the Act and under Order 9, Rule 13 CPC were filed simultaneously on the date of knowledge i.e., 06.05.2014. The trial Court did not passed any order on application under Section 17 of the Act and the Apex Court in the case of Kedar Nath vs. Mohan Lal Kesarwani, 2002 (46) ALR 377, has held that it was the duty of the Court to decide the same and the applicant cannot be held responsible for the fault of the Court. The Court has discretion to dispense with the deposit under Section 17 of the Act.

12. He has further submitted that the case of the defendants-petitioners is covered by the judgment of this Court in the case of Zeeshan Ahmad vs. Mehboob Ahmad, 2021 (2) ADJ 585, wherein the Court had set aside the order of rejection of the application under Section 17 of the Act.

13. Further reliance has been made on the judgment of this Court in the case of Zafar Uddin Ahmad vs L. Madan Mohan AIR 1960 LR 612, (paragraph 3, page 4 and paragraph nos. 1 and 2, page 5). It has been submitted that while deciding the Civil Revision No. 360 of 2015, of defendants this Court by the order dated 03.12.2015 held that once the security has been accepted by the Court and the counsel for the respondent also accepts the same, the matter may be decided and accordingly the restoration application of the petitioners in this case was allowed by the order dated 07.12.2016. The trial Court recorded clear finding that the ex-parte order was bad and the law requires that the suit be decided after hearing the parties on merits. The revisional Court remanded the matter with the finding that there is no fault on the part of the defendants but the Court below has committed illegality in rejecting the application of the defendants-petitioners by the impugned order. He has submitted that this Court and the Hon'ble Supreme Court have held in number of judgments and that after the amount is deposited and surety is furnished the Court in required to scrutinize the same and permit the defendants to remove the defects, if any, found by the Court. Reliance has been place on the judgment of this Court in the case of Prabhu Dayal Vs. District Judge, Saharanpur, ALR 1984 (10) 816, wherein this Court has held that Section 17 of the Act requires liberal construction.

14. Further reliance has been made by the learned Senior Counsel on the judgment of the Hon'ble Supreme Court in the case of Bhagwan Dass Arora vs. First Additional District Judge, AIR (1983) SC 954, wherein the Apex Court has held that mere breach of procedural provision cannot be construed against the litigant and create hardship for him.

15. It has finally been submitted that the orders impugned are not in accordance with law and if allowed to stand, would cause prejudice to the rights of the defendants-petitioners and hence they may be set aside by this Court.

16. Sri Atul Dayal, learned Senior Counsel for the plaintiffs-respondents has submitted that there is difference taking of security on record of the case and the order of sufficiency of security furnished before the trial Court as per Section 17 of the Act. The statement before this Court made by the counsel for the plaintiff in SCC Revision No. 360 of 2015 was regarding acceptance of security and this Court directed the matter to be decided expeditiously. No finding was recorded by this Court also while deciding the aforesaid revision that the surety furnished is sufficient and in accordance with law nor any such statement was made by the counsel for the plaintiff. The defendants were aware that no orders have been passed regarding sufficiency of surety furnished before trial Court and therefore they moved application 17-Ga and 21-Ga for specific orders regarding sufficiency of surety. The trial Court only on the basis of the statement of the counsel for the plaintiff-respondent before this Court in SCC Revision No. 360 of 2015 allowed the application under Section 17 and consequently the application under Order 9, Rule 13 filed by the defendants-petitioners. Against the order of the trial Court, SCC Revision was preferred by the plaintiff and the revisional Court found that the only prayer of the defendant in application 14-Ga dated 12.05.2014 was to take security on record. Therefore, the revisional Court held that first the trial Court should consider the application under Section 17 and then only application under Order 9, Rule 13 CPC filed by the defendants can be allowed.

17. After remand the trial Court found that no security was filed along with the application under Section 17 of the Provincial Small Cause Courts Act and only a prayer for permission to file security was made along with tender of remaining amount which was allowed. Tender of Rs. 36,024/- was allowed, but since no security was filed, no orders could be passed. Subsequently, application 14-Ga dated 12.05.2014 was filed with the prayer that security may be taken on record which was allowed on 24.05.2014. The security of a rental shop of Nagar Nigam furnished before the trial Court was not in accordance with Section 17(2) of the Act read with Section 145 CPC. The revisional Court has rightly confirmed the findings of the trial Court and no further time can be allowed to the defendants.

18. He has placed reliance on the judgment of the Apex Court in the case of Kedar Nath vs. Mohan Lal Kesarwani and others, 2002 (1) ARC 186 SC, paragraph 9 and judgment of the Division Bench of this Court in the case of Raj Kumar Makhija vs. M/S S.K.S. & Co., 2012 (3) ARC 117 (DB) in paragraph 53 quoted as below:-

"9. The provision 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. We think that it may be filed at any time upto the time of presentation of application for setting aside ex-parte decree or for 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 Court to make a prompt order. The delay on the part of the Court in passing an appropriate order would not be held against the applicant because none can be made to suffer for the fault of the Court.

53.Viewed as above, we answer the question referred to us in the following manner:

1. Any application filed by the tenant/defendant to made good the shortfall either in deposit or security after expiry of period of limitation is of no consequence. The application for setting aside of the exparte decree will be dismissed for non compliance of the said proviso to Section 17 of the Act.

2. Any amount deposited after the expiry of the period of limitation will not be taken into consideration for judging the compliance of the proviso to Section 17 of the Act. However, Court ignores the shortfall in deposit of a negligible amount on the principle of deminimis, as explained above.

3. There being no provision conferring power on the Court to condone the delay in making the deposit, provision of Section 5 of the Limitation Act will not be applicable to deposit contemplated under the proviso to Section 17 of the Act.

19. Dr. S.B. Singh, learned counsel appearing on behalf of respondent nos. 2/1, 2/2, 2/3, 2/4 and respondent no. 3 has relied upon the judgment of the Apex Court in the case of Subodh Kumar Vs. Shamim Ahmad, Civil Appeal Nos. 802-803 of 2021 decided on 03.03.2021 and the judgment of the Apex Court in the case of Kedar Nath vs. Mohan Lal Kesarwani 2002 (1) ARC 186 SC, and has submitted that there was no compliance of the provision of Section 17 of the Act and submitted the Apex Court has held in the judgment of Subodh Kumar (Supra) that even if the requirement of Section 17 of the Act are complied the application under Order 9, Rule 13 CPC cannot be allowed unless sufficient cause is shown.

20. After hearing the rival contentions, this Court finds that the crux of the dispute between the parties is whether the application made under Section 17 by the defendants was rightly considered by the trial Court and rejected or not.

21. The undisputed fact is that the SCC suit of the plaintiff-respondent was decreed ex-parte on 18.12.2005. One application under Section 17 of the Provincial Small Cause Courts Act (8-Ga) was filed on 06.05.2014 and it was clearly stated therein that out of total decretal amount of Rs. 98,624/-, Rs. 12,600/- has been deposited under Section 30(1) of U.P. Act No. 13 of 1972 and the amount of tender of Rs. 36,024/- is being submitted for being passed. For remaining amount of Rs. 50,000/-, defendant may be permitted to furnish security.

22. On the same date, an application under Order 9, Rule 13 C.P.C (Paper No. 4-C) was also filed praying for setting aside the ex-parte decree. On 12.05.2016, another application purportedly under Section 17 of the Provincial Small Cause Courts Act was made with the prayer for accepting the surety annexed with the application. The surety furnished along with application 14-C was surety of a rented shop which was not owned by the defendant, Abhishek Dixit. The shop was vested in Nagar Nigam, therefore, the revisional court in the impugned order dated 26.02.2021 has held that the surety furnished was not in accordance with Section 145 C.P.C., since the shop of Nagar Nigam cannot be sold for realization of money due under a decree of court.

23. The first order dated 23.09.2015 also recorded the finding that although application 14-C along with surety has been filed but it is not as per the requirement of law. Before this Court, the counsel for the plaintiff made a statement in SCC Revision No. 360 of 2015 that once the surety has been accepted, the earlier application (8-C) had become redundant. The counsel for the plaintiff never made statement that the plaintiff has submitted surety which in accordance with law. Therefore, in the subsequent orders, this issue was addressed by the Courts below. After the order dated 23.09.2015 of trial court no effort was made by the defendants to furnish surety in accordance with the requirements of Section 17(2) of the Provincial Small Cause Courts Act, when the defendants were aware that such an order should be passed and therefore after the SCC Revision No. 360 of 2015 was decided by the Court on 03.12.2015, defendants made applications 17(Ga), 19(Ga) and 102(Ga) for specific order under Section 17 of Provincial of Small Cause Courts Act, regarding sufficiency of surety furnished.

24. Counsel for the defendants-petitioners has relied upon the judgment of this Court in the case of Zeeshan Ahmad (Supra) wherein this Court has held that the application for recall of ex-parte decree should be preceded by an application under Section 17 of Provincial Small Cause Courts Act. The provision regarding deposit of decretal amount can be dispensed only if the application for the same is moved, prior to the filing of application under Order 9, Rule 13. In the present case, the application under Section 17 of Provincial Small Cause Courts Act and application under Order 9, Rule 13 were moved on the same date i.e., 06.05.2014. Along with application under Section 17 tender for deposit of part of the decretal amount was annexed and permission was sought for furnishing surety. No application for dispensing with surety was filed rather permission was sought for the same. The requirement of Section 17 is mandatory and the filing of application under Section 17 of Provincial Small Cause Courts Act without furnishing surety and making no prayer for dispensing with the same will be read against the defendants and this case law will not support them. In the case of Mohan Lal Kesharwani (Supra), the Supreme Court has held that the trial Court is vested with jurisdiction to dispense with the security and deposit of decretal amount and delay on the part of Court in passing an appropriate Order cannot be held against the applicant. In the present case, the application under Section 17 was filed on 06.05.2014 and no surety was filed along with application nor any prayer was made before the Court for dispensing with the surety or the amount sought to be deposited by way of security. Rather, an application Paper No. 14-C was filed on 12.05.2014 wherein the only prayer was to keep the application on record. The Court passed the order on next date i.e., 24.05.2019, for keeping the aforesaid application on record. There was neither any prayer for accepting the surety towards the part of the decretal amount nor any such order was passed, therefore, it is clear that the prayer made in the application was allowed. Moreover, this application 14-C was made after filing of the application under Order 9, Rule 13 on 24.05.2014 when the application under Order 9, Rule 13 was filed on 06.05.2014. Therefore, this application Paper No. 14-C was not prior to the application under Order 9, Rule 13 and therefore, in view of the judgment of this Court in the case of Zeeshan Ahmad (Supra) will not help the defendants.

25. The judgment in the case of Prabhu Dayal (Supra) clearly states that whenever an application under Section 17 of the Provincial Small Cause Courts Act is filed it is not necessary that entire decretal amount need to be ordered to be deposited. Such application should be filed within time and security for decretal amount should be furnished along with application. As discussed earlier, in the present case surety for the amount of Rs. 50,000/- was submitted on 24.05.2014 when the restoration application was filed on 06.05.2014, therefore, how this case law will help the defendants is beyond comprehension.

26. The case of Bhagwan Das Arora (Supra) next relied upon the learned counsel for the defendants-petitioners, provides that where they were conflicting views regarding an amount of stamp duty to be paid on surety and surety was furnished prior to making the restoration application as per the law but on account of dispute regarding the stamp duty on the security, the same was not accepted as valid, the Apex Court held that the litigant cannot be blamed for the conflicting views of the Courts regarding appropriate stamp duty on the security produced by the appellant before the Court. In the present case there is no such dispute.

27. The last relied upon by the counsel for the defendants-petitioners is Zafaruddin Ahmad vs. Madan Mohan, AIR 1960 All 612. In this case, the Division Bench of this Court has held that the application for permission to furnish security should be prior to application for setting aside ex-parte decree but actual direction of the Court need not be previous to such application made under Order 9, Rule 13. The direction regarding furnishing security can be passed after filing of the restoration application under Order 9, Rule 13 CPC. In the case in hand the application under Section 17 of the Provincial Small Cause Courts Act was filed along with restoration application on 06.05.2014 but with no security attached therewith. Subsequently, an application was filed on 12.05.2014 praying for keeping the application on record and with the application, the surety in the form of a rented shop was furnished which was not in accordance with Section 17 (2) of the Provincial Small Cause Courts Act and Section 145 CPC. Therefore, this case is also distinguishable on facts. There was not fault on the part of the Court and the argument in this regard made on behalf of the defendants-petitioners cannot be accepted. It is crystal clear that along with application under Section 17 of the Provincial Small Cause Courts act no surety for the decretal amount of Rs. 50,000/- was furnished by the defendants.

28. The Apex Court in the case of Kedar Nath vs. Mohan Lal Kesarwani (Supra) has held that the provision under Section 17 of Provincial Small Cause Courts Act provides that the Court in its discretion, subject to previous application by the applicant, can grant leave from furnishing security but it has not been held that where the incompetent surety has been furnished, the Court may dispense with the same. It has further held that the delay on the part of the Court in passing appropriate order on the application cannot be held against the litigant. In the present case, the order was passed by the Court on 23.09.2015 regarding the applications 4-C filed under Order 9, Rule 13 CPC and 6-C filed on 06.05.2012 and 14-C filed under Section 17 of Provincial Small Cause Courts Act on 12.05.2014 respectively. Thereafter, SCC Revision No. 360 of 2015 was filed before this Court against the order dated 23.09.2015 passed by the trial court which was disposed of on 03.12.2015 directing the trial court to decide the matter expeditiously. The trial Court by the order dated 07.12.2016 allowed the application under Order 9, Rule 13 without recording clear finding regarding the sufficiency of surety furnished which was set aside by the revisional court and the matter was remanded to the trial Court. The trial Court again found that the surety was not in accordance with law and revisional Court has affirmed the same.

29. This Court finds that in all the proceedings before the trial Court and the revisional Court, this fact has come that the surety furnished by the defendants was not as per the requirement of law and as held by the Division Bench of this Court in the case of Raj Kumar Makhija (Supra). No extension of time can be allowed to a defendant to furnish surety in accordance with law. The judgments relied upon by the counsel for the petitioners do not apply to the facts of the case since in the present case instead of making prayer before the trial Court prior to the order dated 23.09.2015 was passed by the trial Court to furnish appropriate surety, the defendants have resorted to litigation and at no stage they offered any surety in accordance with law.

30. Much emphasis was laid by learned Senior Counsel

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for the defendant-petitioner on the statement of the Senior Counsel for the plaintiff-respondent no. 1 made before this Court in SCC Revision No. 360 of 2015 that surety has been accepted by the trial court and presuming his statement, as placing correct legal position before the Court, this court vide order dated 03.12.2015 disposed of the SCC Revision aforesaid observing that once surety has been accepted by the court below, as admitted by the counsel for plaintiff-respondent no. 1, the matter is directed to be decided expeditiously. His contention is that once the counsel made a statement before this Court and order was passed on its basis that the surety has been accepted by the trial Court, there was no option left for the trial Court and the revisional court to pass orders contrary to the same. 31. It is settled law that a statement or concession made by a counsel regarding question of law is not binding on the party as held by the Apex Court in the case of Union of India vs. Hira Lal, (1996) 10 SCC 574. In the case of Himalayan Coop. Group Housing Society vs. Balwan Singh, (2015) 7 SCC 373, the Apex Court held that an admission by the counsel having effect of surrendering the substantial legal right of the parties is not binding. It was further held that where the admission of fact is not unequivocal and where doubt exists, it is not binding. In the case of C.M. Arumugam vs. S. Rajgopal, (1976) 1 SCC 863, a concession on a point involving mixed question of law and fact was held as not binding. 32. In the present case, learned counsel appearing for the plaintiff-respondent no. 1 made a sweeping statement before this Court in SCC Revision No. 360 of 2015 that surety furnished by the defendants-petitioners was accepted by the trial court, when it is clear that only prayer made before the trial court was to take application 14-C for taking the surety on record, which was taken by the trial court on record. No orders as to maintainability of application 14-C filed on 12.05.2014 nor order regarding surety being as per law was passed when the application 6-C was already filed on 06.04.2014 along with application 4-C on the same day, under Order 9, Rule 13 CPC. The application 14-C, as considered earlier, was admittedly filed after filing of application under Order 9, Rule 13 CPC therefore, it was not maintainable and without consideration of the legal position sweeping statement was given by the learned counsel for the plaintiff-respondent no. 1 before this Court which cannot bind the plaintiff-respondent no. 1 as per the law considered hereinabove. 33. Therefore, the judgment and orders sought to be quashed in this petition cannot be allowed. 34. The writ petition lacks merit and is accordingly, dismissed.
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