NDLI: Subodh Kumar Vs. Shamim Ahmed

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Provincial Small Cause Courts Act 1887
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Case(s) Referred	Referred Case 0 Referred Case 1
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	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u/Or.9, R.13 and s.5 of the Limitation Act – Aggrieved, the appellant-landlord filed SLP and the same was dismissed and withdrawn – After this order, the review application was filed before the High Court and same was rejected on 24.05.2019 – Before the Supreme Court, the respondent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 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.
Judge	Hon'ble Mr. Justice Ashok Bhushan
Neutral Citation	2021 INSC 146
Petitioner	Subodh Kumar
Respondent	Shamim Ahmed
SCR	[2021] 1 S.C.R. 1111
Judgement Date	2021-03-03
Case Number	802

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1	Ministry of Education (GoI), Department of Higher Education	Sanctioning Authority	https://www.education.gov.in/ict-initiatives
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