SUBODH KUMAR v. SHAMIM AHMED

#5. When the plaintiff had claimed exemption from the operation of the Act No. 13 of 1972, it was specific pleading as noted above, how deposit can be made under Section 30 of the Act by the tenant respondent. Section 2 begin with the expression that ‘Nothing in this Act shall apply’. When there is exemption from the applicability of the Act No.13 of 1972 as pleaded by the plaintiff, Section 30 of the Act shall also not be applicable. When Section 30 itself is not applicable to the building, the deposit claimed to be made under Section 30(2) is wholly irrelevant, for any purposes including for purposes of proviso to Section 17 of Act, 1887. [Para 35][1127-H; 1128-A-B]

#6. Therefore, 1) In the application filed by the tenant on 25.08.1998 under Order 9 Rule 13, there was no compliance of Section 17 of 1887 Act and the application was incompetent; 2) The respondent-tenant had not deposited the entire amount due on 25.08.1998 even under Section 30(2) of Act No.13 of 1972; 3) The deposit of rent under Section 30(2) of the Act No.13 of 1972 in the present case cannot be treated to be deposit for the purposes of proviso under Section 17 of the Act, 1887. [Para 42][1131-C-E]

#7. The tenant-respondent has not made out any sufficient ground to allow the application under Order 9 Rule 13 and the High Court committed error in interfering with the order of the A B C D E F G H SUBODH KUMAR v. SHAMIM AHMED 1115 trial court rejecting such application which was also confirmed by the District Judge. [Para 50][1133-B-C] A

#8. The trial court has rejected the application of tenant under Order 9 Rule 13 not adopting any hyper-technical and pedantic approach rather on the finding that there was non-compliance of proviso to Section 17 of the Act, 1887, hence, the application deserves to be rejected. Requirement under proviso to Section 17 can neither be said to be hypertechnical nor pedantic but the same was the requirement of law and condition precedent for maintainability of application under Order 9 Rule 13. The High Court is not right in its view that trial court and Revisional Court has taken hypertechnical and pedantic approach while considering the application under Order 9 Rule 13 of CPC and Section 5 of the Limitation Act. [Paras 54 and 55][1133-G-H; 1134-A-C] ORDER 4Kh application u/s 30(2) of Act No.XIII of 1972 is allowed without prejudice to the respective contentions of the parties. The plaintiff SUBODH KUMAR v. SHAMIM AHMED [ASHOK BHUSHAN, J.] 1127 may deposit the amount if he so likes at his own risk. The parties shall be free to agitate the question of validity of deposit in the S.C.C. Suit pending. File be consigned.”

#33. Thus, the deposit by respondent-tenant under Section 30(2) was under his own risk and the parties were free to agitate the question of validity of deposit in the S.C.C. suit which was pending on that day.

#34. We have noted the pleadings in the suit that the plaintiff-landlord has come up with the case that Act No. 13 of 1972 is not applicable. In the pleadings of the suit, the plaintiff-appellant has claimed the exemption from the operation of the Act 13 of 1972, ten years of construction being not completed. Section 2 of Act No. 13 of 1972 provides:- “2. Exemptions from operation of Act. (1)..... ..... ..... (2) Except as provided in sub-section (5) of Section 12, sub-section (1-A) of Section 21, sub-section (2) of Section 24, Sections 24-A, 24-B, 24-C or sub-section (3) of Section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed]: Provided that where any building is constructed substantially out of funds obtained by way of loan or advance from the State Government or the Life Insurance Corporation of India or a bank or a co-operative society or the Uttar Pradesh Avas Evam Vikas Parishad, and the period of repayment of such loan or advance exceeds the aforesaid period of ten years then the reference in this sub-section to the period of ten years shall be deemed to be a reference to the period of fifteen years or the period ending with the date of actual repayment of such loan or advance (including interest), whichever is shorter.: Provided further that where construction of a building is completed on or after April 26, 1985 then the reference in this sub-section to the period of ten years shall be deemed to be a reference to a period of forty years from the date on which its construction is completed.”

#35. When the plaintiff had claimed exemption from the operation of the Act No. 13 of 1972, it was specific pleading as noted above, how deposit can be made under Section 30 of the Act by the tenant respondent. A B C D E F G H 1128 SUPREME COURT REPORTS [2021] 1 S.C.R. A B C D E F G H Section 2 begin with the expression that ‘Nothing in this Act shall apply’. When there is exemption from the applicability of the Act No.13 of 1972 as pleaded by the plaintiff, Section 30 of the Act shall also not be applicable. When Section 30 itself is not applicable to the building, the deposit claimed to be made under Section 30(2) is wholly irrelevant, for any purposes including for purposes of proviso to Section 17 of Act, 1887.

#36. The High Court in the impugned judgment has relied on two earlier judgments of the High Court for coming to the conclusion that the deposit of Section 30(2) of Act No. 13 of 1972 can be adjusted against the amount required to be deposited as per Section 17 proviso of Act, 1887. The High Court has referred to the judgment of the High Court in Prem Chandra Mishra versus IInd Additional District Judge, Etah, Writ Petition No.12103 of 1996 decided on 11.09.2008 reported in (2008) 9 ADJ 13.

#37. In the case of Prem Chandra Mishra, certian amount was deposited by the tenant on first date of hearing, some amount was also deposited under Order 15 Rule 5 CPC by the tenant. The amount which was deposited under Section 20(4) of the Act No.13 of 1972 as well as Order 15 Rule 5 CPC which could have been deemed to have been paid on the date of such deposit. Following are the observations of the High Court: - “...Question arising in the present case is that Revisional Court has recorded finding of fact which has not at all been assailed before this Court that entire amount which is due from tenant under decree qua the same deposit is already there even before passing of decree and once entire amount in question is there can even in this contingency application under Section 17(1) of Provincial Small Cause Courts Act 1887 can be dismissed for non-compliance of provision of proviso. Amount in question under Section 20(4) of U.P. Act No. 13 of 1972 is permitted to be deposited in any suit for eviction on the ground mentioned in Clause (a) of sub-Section (2) of Section 20 by the tenant on the first hearing of the suit unconditionally and amount which is already deposited under Sub-Section (1) of Section 30 of U.P. Act No. XIII of 1972 is liable to be deducted for enabling tenant to save eviction. Sub-Section (6) of Section 20 clearly provide that any amount deposited by the tenant under Sub-Section (4) or under SUBODH KUMAR v. SHAMIM AHMED [ASHOK BHUSHAN, J.] 1129 Rule 5 of Order VX of the First Schedule to the Code of Civil Procedure, 1908 shall be paid to the landlord forthwith on his application without prejudice to the parties pleadings and subject to the ultimate decision in the suits. Similarly Sub-Section (4) of Section 30 provides that on any deposit which are made under Section 30 the amount in question which has been deposited can be withdrawn on an application made in this behalf and further sub-Section (6) of Section 30 provides that any deposit made, same shall be deemed that the person depositing it has paid it on the date of such deposit to the person in whose favour it is deposited in the case referred to in sub-section (1) or to the landlord in the case referred to in sub-section (2). Thus, deposits which are made under Sub-Section (4) of Section 20 and under Section 30 of U.P. Act No. 13 of 1972 and under Order XV Rule 5 C.P.C. are in custody of the Court and said amount in question can at any point of time, be withdrawn by the landlord in question, and are readily available to the landlord...”

#38. The High Court in the above case came to the following conclusion: - “...Facts of the present case are on better footing, inasmuch as here Revisional Court has recorded categorical finding that as per exparte decree. Tenant was required to deposit Rs. 5338.75/ - in cash which was inclusive of rent claimed by plaintiff and other expenses and total which has been deposited by him was over and above the amount which was to be paid by him under decree i.e. more than Rs. 5800/-. In the present case admitted position is that after ex parte decree has been passed application to recall ex-parte decree was made on 24.05.1993 and alongwith the same application under the proviso to Section 17(1) has not at all been moved. Said application was admittedly moved subsequent to the same on 25.02.1994 and in the said application mention was made by him that he has already deposited the rent, cost of suit and interest of JSCC suit much earlier before passing of exparte decree. Said application which has been moved on behalf of tenant was not stating any thing new rather it was sought to be stated by the tenant that in the present case decretal amount is already with the court as he has already paid arrears of rent, cost of suit and interest of JSCC suit A B C D E F G H 1130 SUPREME COURT REPORTS [2021] 1 S.C.R. A B C D E F G H much before passing of exparte decree and same may be taken into consideration while entertaining application. Distinction will have to be drawn qua the cases wherein entire amount as mentioned in the proviso to Section 17 of Provincial Small Cause Courts Act 1887 already stands deposited even before passing of exparte decree. In the said event of entire amount in question being prior deposited, information has to be furnished before Judge Small Causes Court, then said fact on verification can be treated as sufficient compliance as provided under the proviso to Section 17 (1) of Provincial Small Cause Courts Act 1887, inasmuch as nothing new has been sought to be done after expiry of the period rather only information has been furnished that said condition has already been complied with and interest of landlord is fully protected as per object and the purpose of Section 17. Tenant cannot be asked to make deposit for second time and furnish security for the second time in the backdrop that prior to passing of decree entire amount due under decree or judgment has already been deposited. Judge Small Causes can make inquiry in the matter of this fact on being apprised as to whether decretal amount is there or not but where decree in question has been passed and decretal amount mentioned as above is not at all there then law laid down by Hon’ble Apex Court in Kedarnath’s case (supra) has to be followed in its word and spirit. Facts narrated above clearly makes Kedarnath’s case (supra) distinguishable. In the facts of the present case as finding of fact is that entire amount has been deposited which was over and above to the decretal amount and Revisional Court has allowed the same then there being no failure of justice, then there is hardly any scope of interference. Consequently, in terms of observations made above, present writ petition is dismissed.”

#39. The perusal of the judgment indicate that the said was a case where applicability of Act No. 13 of 1972 was not questioned and the deposit made under Section 20(4) as well as Order 15 Rule 5 CPC were relied for the purposes of Section 17.

#40. In the present case, the plaintiff has come up with the case that Act No.13 of 1972 is not applicable in the building in question. When Act No.13 of 1972 is not applicable, there is no question of deposit under SUBODH KUMAR v. SHAMIM AHMED [ASHOK BHUSHAN, J.] 1131 Section 30 nor deposit under Section 30 can be said to be valid deposit. Thus, judgment of the Allahabad High Court, which has been relied in the impugned judgment, is clearly distinguishable.

#41. We have our own doubts about the correctness of the view taken by Allahabad High Court in the above judgment, but for the purposes of the present case, we need not dwelve any further since in the present case, Act No.13 of 1972 is not applicable. The deposit under Section 30 is of no avail and further, as held above, there was no deposit of the entire amount due on the date of filing the application under Order 9 Rule 13 by the tenant.

#42. In view of the foregoing discussions, our answer to question Nos.1,2 and 3 are as follow:- 1) In the application filed by the tenant on 25.08.1998 under Order 9 Rule 13, there was no compliance of Section 17 of 1887 Act and the application was incompetent. 2) The respondent-tenant had not deposited the entire amount due on 25.08.1998 even under Section 30(2) of Act No.13 of 1972. 3) The deposit of rent under Section 30(2) of the Act No.13 of 1972 in the present case can not be treated to be deposit for the purposes of proviso under Section 17 of the Act, 1887. Now we come to the question No.4

#43. Even if for the arguments sake, we proceed on the assumption that in the present case, there is a compliance of proviso to Section 17, whether application under Order 9 Rule 13 in the facts of the present case was rightly rejected by the trial court is a question to be considered.

#44. We have noticed above that prior to ex-parte decree dated 31.03.1998, trial court had already passed two orders to proceed ex- parte on 24.02.1997 and 18.03.1997. The tenant respondent had filed an application 44Ga to recall the orders dated 24.02.1997 and 18.03.1997 which applications were rejected on 16.05.1997. While rejecting the application 44Ga filed by the tenant to recall the ex-parte order. Following was said by the trial court while rejecting the application: - “...The defendant wants to delay the case regularly because he is a tenant and getting benefit from the property. The application is A B C D E F G H 1132 SUPREME COURT REPORTS [2021] 1 S.C.R. A B C D E F G H based on malafide. The defendant is failed to explain any legal and genuine cause for his absence. It is not reasonable to grant any other opportunity. The application is rejected. The plaintiff present his exparte evidence on 25.05.1997.”

#45. The tenant’s application to recall the exparte order was rejected by recording the findings as noted above. The trial court while rejecting the application under Order 9 Rule 13 has considered the entire sequence of events and facts. The trial court while rejecting the application under Order 9 Rule 13 vide its order dated 19.04.2007 has recorded categorical finding that there is no compliance of proviso to Section 17, the decretal amount having not been deposited at the time of filing application under Order 9 Rule 13.

#46. We may also notice the order of the District Judge by which he rejected the revision petition filed by the tenant against the order dated 19.04.2007. District Judge in judgment noted that the tenant was provided with several opportunities to file written statement.

#47. We are, thus, of the considered opinion that there was no valid ground on which the High Court could have interfered with the order of the trial court rejecting the application under Order 9 Rule 13 filed by the tenant to recall the ex-parte decree. We may further hold that even in the case where there is a compliance of proviso to Section 17, the application filed under Order 9 Rule 13 to set aside the decree passed ex-parte or for review of the judgment cannot be automatically granted. The compliance of proviso to Section 17 is a Pre- condition for maintainability of application under Order 9 Rule 13. Application under Order 9 Rule 13 can be allowed only when sufficient cause is made out to set aside the ex-parte decree. The present is a case where no sufficient cause was made out to set aside the ex-parte decree.

#48. As noted above, the tenant had unsuccessfully challenged the orders passed by the trial court on 24.02.1997 and 18.03.1997 to proceed ex-parte. The application of the tenant to recall the orders dated 24.02.1997 and 18.03.1997 was rejected by the trial court with a clear finding that the tenant wants to delay the case regularly because he is the tenant and getting benefit of the property. The application of the tenant was held to be mala fide.

#49. The High Court without even adverting to the earlier order of the trial court dated 16.05.1997, where categorical findings had been SUBODH KUMAR v. SHAMIM AHMED [ASHOK BHUSHAN, J.] 1133 recorded against the tenant, choose to allow the application under Order 9 Rule 13 filed by the tenant to recall ex-parte decree, which cannot be said to be correct exercise of jurisdiction under Article 226 of the Constitution.

#50. We, thus, answer question No.4 in the following words: The tenant-respondent has not made out any sufficient ground to allow the application under Order 9 Rule 13 and the High Court committed error in interfering with the order of the trial court rejecting such application which was also confirmed by the District Judge. QUESTION NO.5

#51. The High Court in its impugned judgment has referred to judgment of this Court in Kailash versus Nanku and others, reported in (2005) 4 SCC 480, where this Court has laid down that all rules of procedure are the hand made of justice. In the above case, this Court was considering the power of the Court to permit extension of time for filing of written statement beyond a time as fixed under Order 8 Rule 1 CPC. The observations in paragraphs 28 and 29, which have been relied by the High Court, where in reference to Order 8 Rule 1 CPC, this Court held that provisions under Order 8 Rule 1 CPC are directory.

#52. The above judgment was not applicable in the facts of the present case. Present was not a case where there was any procedural breach at the part of tenant-respondent. The tenant-respondent has not complied with condition precedent for maintainability of the application under Order 9 Rule 13 as laid down in Section 17 proviso. A B C D E

#53. The High Court in paragraph 20 of the judgment has made F following observations:- “20. Since the learned Courts below have adopted a hyper- technical and pedantic approach while considering the applications under Order 9 Rule 13 C.P.C. and Section 5 of Limitation Act, filed by the petitioner, therefore the impugned orders are liable to be quashed.”

#54. The above observations of the High Court cannot be approved. The trial court has rejected the application of tenant under Order 9 Rule 13 not adopting any hyper-technical and pedantic approach rather on the finding that there was non-compliance of proviso to Section 17 of G H 1134 SUPREME COURT REPORTS [2021] 1 S.C.R. the Act, 1887, hence, the application deserves to be rejected. Requirement under proviso to Section 17 can neither be said to be hypertechnical nor pedantic but the same was the requirement of law and condition precedent for maintainability of application under Order 9 Rule 13.

#55. The question no.5 is answered as follows: The High Court is not right in its view that trial court and Revisional Court has taken hypertechnical and pedantic approach while considering the application under Order 9 Rule 13 of CPC and Section 5 of the Limitation Act.

#56. In view of the foregoing discussions, we are unable to sustain the judgment of the High Court dated 13.12.2018. The judgment dated 13.12.2018 as well as the order dated 24.05.2019 rejecting the review application as well as consequential order passed by the trial court dated 24.05.2019 are set aside. The order of the trial court dated 19.04.2007 rejecting the application under Order 9 Rule 13 of the respondent is upheld.

#57. In view of the facts of the present case especially the fact that the appellant has not been able to reap the benefit of the decree which was passed in his favour on 31.03.1998, we direct the Executing Court to execute the decree and put the appellant in possession along with the payment of entire decretal amount up to date within a period of three months from the date the copy of judgment is produced before the Executing Court.

#58. The appeals are allowed with costs of Rs.25,000/- to be paid by the respondent to the appellant before the Executing Court. Ankit Gyan Appeals allowed. A B C D E F G H