SHYAM KUMAR GUPTA & ORS. versus SHUBHAM JAIN
[2023] 4 S.C.R. 873, Supreme Court of India, 2023
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
A
B
C
D
E
F
G
H
873
[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
A
B
C
D
E
F
G
H
874
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 possession of the suit shop after payment of
A
B
C
D
E
F
G
H
875
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 given circumstances, when the defendant,
predecessor of the appellants, immediately moved the Court after
noticing the decree in question and deposited the amount directly
quantified thereunder 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 had
not been 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.
Looking to the subject-matter of the suit and the overall
circumstances, a practical view was required to be taken and if
any further deposit or furnishing of security was considered
necessary, appropriate orders could have been passed in that
regard. Putting it differently, in terms of Section 17 of the Act of
1887 read with Order IX Rule 13 CPC, the Court could have
extended the time for making deposit if so required, or could
have put the defendant to the terms of security for performance
of the decree. [Para 15.1][883-G-H; 884-A-D]
3.1. The trial court and the High Court viewed the
requirements of Section 17 of the Act of 1887 from an exacting
and rather impractical standpoint that the bonafide attempt of the
defendant to seek a merit decision of the suit after
due contest
has been totally ignored. In the present set of facts and
circumstances, prayer of the defendant to set aside ex parte
decree could not have been denied for want of further deposit in
terms of the decree in question. [Para 15.2][884-E-F]
3.2. Even if the requirements of Section 17 of the Act of
1887 are held to be mandatory, the present one had not been a
case where the defendant had altogether ignored those
requirements. [Para 15.3][884-G-H]
3.3. In response to the queries of this Court, the appellants
immediately took bonafide steps and deposited the amount which
may be relatable to rent/mesne profits until the month of April,
2023. For this bonafide and prompt step (albeit taken after
SHYAM KUMAR GUPTA & ORS. v. SHUBHAM JAIN
A
B
C
D
E
F
G
H
876
SUPREME COURT REPORTS
[2023] 4 S.C.R.
approaching this Court), they do deserve an opportunity to contest
the suit on merits, particularly when the matter relates to a shop
where the predecessor of the appellants had been continuing as
tenant and the plaintiff-respondent is seeking the decree for
eviction only on the ground of default in payment of rent. [Para
16][885-C-D]
4. Accordingly, the application filed by the appellants under
Order IX Rule 13 CPC is allowed and thereby, the ex parte
judgment and decree are set aside. Consequently, the said suit
shall stand restored for being considered on its own merits. [Para
17][885-E]
Kedarnath v. Mohan Lal Kesarwari and Ors. 2002 ALL
CJ 145 = (2002) 2 SCC 16] : [2002] 1 SCR 144 – held
inapplicable.
Case Law Reference
[2002] 1 SCR 144
held inapplicable
Para 15.3
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 765 of
2023.
From the Judgment and Order dated 21.09.2022 of the High Court
of Judicature at Allahabad, Lucknow Bench at MUA227 No. 3536 of
2022.
Prateek Kumar, Ruchir Ranjan Rai, Desh Deepak Singh, Ravindra
Vikram, Advs. for the Appellants.
Vinayak Mohan, Yatish Mohan, E. C. Vidya Sagar, Advs. for the
Respondent.
The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
Leave granted.
2. This appeal, by the legal representatives of deceased defendant
in the civil suitbearing No. 1 of 2015 for recovery of arrears of rent and
for ejectment, is directed against the order dated 21.09.2022 passed by
the
High Court of Judicature at Allahabad, Lucknow Bench in the petition
bearing No. 3536 of 2022, whereby the High Court has declined to
interfere with the order dated 01.09.2022 passed by the Court of Additional
A
B
C
D
E
F
G
H
877
District and Sessions Judge (POCSO Act)-II, Raebareli,rejecting an
application under Order IX Rule 13 of Code of Civil Procedure, 1908
(‘CPC’) for setting aside ex parte judgment and decree dated 09.03.2016/
16.03.2016.
3. Shorn of unnecessary details and briefly put, the relevant
background aspects of the matter are that the respondent herein, asserting
his capacity as owner and proprietary right holder, filed the suit aforesaid
against the late father of present appellants in the Small Causes Court,
stating that the defendant was a tenant in the suit shop at a monthly rent
ofRs. 2,000/- per month and had failed to make payment of rent from
the month of February, 2015 to the month of May, 2015, amounting toRs.
8,000/- and 15% municipal tax despite notice.
4. It appears that in the said civil suit, the Trial Court held the
service of summons on the defendant sufficient and proceeded ex parte
for want of appearance on behalf of the defendant; and after taking
evidence, on 09.03.2016, decreed the suit with costs, for recovery of
arrears of rent in the sum of Rs. 8,000/- and for eviction of the defendant
from the suit shop while also holding the plaintiff entitled to receive
damages from the defendant, for use and occupation of the suit shop, at
the rate of Rs. 2,000/- per month until delivery of actual vacant possession.
The operative part of the judgment dated 09.03.2016 reads as under: -
“The suit of the plaintiff is decreed ex-parte with cost against
the
defendant for recovery of the rent Rs. 8,000/- and for eviction
of the shop in question and the defendant is ordered that he to
hand over the vacant possession of the plaintiff’s shop which is at
present situated in Municipality House No. 62/3, Ward No. 24,
Malikmau Road, near Beliganj Phatak within the jurisdiction of
the Municipality, Pargana, Tehsil and District Raebareli, the four
boundaries of which are – North by: Malikmau Road, South by:
rest building of the plaintiff, East by: House of the plaintiff, West
by: House of Hariom are situated, within two months. The plaintiff
would be entitled to Receive Rs. 2,000/- per month as the
compensation for use of the aforesaid shop during the suit and till
handing over the actual vacant possession and occupation of the
said shop after paying the Court Fee in the Execution Department.”
5. Later on, the defendant, predecessor of the appellants, moved
an application under Order IX Rule 13 CPC alongwith an application
under Section 5 of the Limitation Act, 1963 on 20.08.2016. He also moved
SHYAM KUMAR GUPTA & ORS. v. SHUBHAM JAIN
[DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
H
878
SUPREME COURT REPORTS
[2023] 4 S.C.R.
an application under Section 17 of the Provincial Small Cause Courts
Act, 1887 (‘the Act of 1887’), alongwith a tender seeking permission to
deposit the decretal amount to the tune of Rs. 11,212/-, inclusive of the
amount of costs. An objection was taken by the plaintiff-respondent
against the application so moved by the defendant with the submissions,
inter alia, that under the decree in question, he was entitled not only to
the said arrears of rent and costs but also to damages at the rate of
2,000/- per month 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. It is noticed that
during pendency of the application aforesaid, the defendant, father of
the appellants, expired on 26.09.2017; and an application was moved by
the present appellantson 12.03.2018,for their substitution as applicants
in place of the deceased applicant.
6. The Trial Court took note of the respective submissions of the
parties and upheld the objections of the plaintiff-respondent while
observing, inter alia, as under: -
“The applicant Mata Prasad by submitting an application 7g2
in the file of the present Miscellaneous Suit applied for depositing
the decretal amount Rs. 8,000/- and cost of the suit Rs. 3212/-
total amount Rs. 11,212/- on which an order was passed by the
Court that the applicant can deposit the amount on
which risk.
Thus, it is clear that an amount of Rs. 11,212.00 has been deposited
by the applicant Mata Prasad, whereas it is clear from perusal of
the passed in the Small Cause Case no. 01/2015 and the decree
dated 25-03-2016 passed in the pursuance of it, an order passed
has passed for paying the due rent from the month of February,
2016 to the month of May, 2016 (Total four months) @ Rs. 2,000/
- per month which is total Rs. 8,000/- and payment 15%
Municipality Tax to be paid @ 9%. Apart from it, it is also
mentioned in the decree that until the defendant gives the possession
and occupation of the shop in question by vacating it to the plaintiff,
till then, compensation of use @ Rs. 2000/- per month be given to
the plaintiff from the defendant and the cost of the case be given
to the plaintiff from the defendant.
It is clear from integrated perusal of the aforesaid judgment
and decree that the judgement and decree have not been complied
by the applicant Mata Prasad. Neither the Municipality Tax nor
A
B
C
D
E
F
G
H
879
the interest accrued on it and nor the compensation for use till the
date of filing the application under Section 13 have been paid by
him. Only the rent due since the month of February to the month
of May, 2015 @ Rs. 2,000/- per month and the cost of the case
Rs. 3212/- total amount Rs. 11,212/- has been deposited by him,
the balance amount which was payable by the applicant Mata
Prasad to the Opposite Party in compliance of the aforesaid decree
and judgment, in that regard, neither any amount has been deposited
by the applicant Mata Prasad and nor any permission has been
sought from the court by filing any application with regard to
submitting any undertaking about the compliance of it. Hence, it
is clear that Section 17 of the Provincial Small Causes Court Act,
1887 which imposes compulsory liability on the applicant that the
applicant after paying the total amount due under the ex-parte
decree and judgment will file the application under Order 9 Rule
13 C.P.C. Word by word and complete compliance of the aforesaid
legal provision has not been done by the applicant Mata Prasad
and nor any undertaking/guarantee in this regard has been
submitted in the Court by him that he is ready and willing to comply
with the aforesaid Judgement and decree. In such situation, it is
the opinion of the Court that the instant Miscellaneous Civil Suit
due to not complying with Section 17 of the Provincial Small Causes
Court Act, 1887 is liable to be dismissed and the
preliminary
objection application 36g2 filed by the Opposite Party is liable to
be allowed.”
7. Being aggrieved by the aforesaid order dated 01.09.2022,
appellants approached the High Court by filing a petition under Article
227 of the Constitution of India, inter alia, with the submissions that the
defendant had not been served in the said civil suit, and the plaintiff-
respondentobtained the decree with concealment of facts. Further, it
was submitted that father of the appellants had moved the application
immediately after coming to know about ex parte decree, and complied
with the requirements of Section 17 of the Act of 1887. It was also
submitted that the Trial Court had failed to examine if the plaintiff-
respondentat all informed the defendant about his ownership after
purchasing the shop in question.
8. The High Court, however, agreed with the Trial Court about
non-compliance of the requirements of Section 17 of the Act of 1887
SHYAM KUMAR GUPTA & ORS. v. SHUBHAM JAIN
[DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
H
880
SUPREME COURT REPORTS
[2023] 4 S.C.R.
and, with reference to the decision of this Court in the case of Kedarnath
v. Mohan Lal Kesarwari and Ors.: 2002 ALL CJ 145 [= (2002) 2
SCC 16], proceeded to dismiss the petition essentially for want of
requisite compliance by the defendant, of depositing the amount due and
payable under the decree in question. The High Court, inter alia,
observed and held as under: -
“Having heard learned counsel for the parties and having perused
the records, what emerges is that the SCC Suit filed by the
respondent had been decided ex-parte vide order dated 09.03.2016
against which an application under Order IX Rule 13 of the CPC
was filed by the petitioners. Admittedly, the petitioners did not
comply with the provisions of Section 17 of the Act, 1887, which
provides that the applicant, at the time of presenting the application,
shall deposit in Court the amount due from him under the decree
or in pursuance of the judgment, or give such security for the
performance of the decree or compliance with the judgment as
the Court may, on a previous application made in this behalf, had
directed.
Perusal of the impugned order dated 01.09.2022 would indicate
that the court below has considered the violation of Section 17 of
the Act, 1887 by specifically recording that the petitioners have
failed to deposit the amount as was due in pursuance to the order
dated 09.03.2016.
The Apex Court in the case of Kedar Nath(supra) has held
the provisions
of Section 17 of the Act, 1887 to be mandatory, as
per the observations in the judgment, which, for the sake of
convenience, are reproduced below:-
“In the case at hand, the application for setting aside ex
parte decree was not accompanied by deposit in the court of
the amount due and payable by the applicant under the decree.
The applicant also did not move any application for dispensing
with deposit and seeking leave of the court for furnishing such
security for the performance of the decree as the court may
have directed. The application for setting aside the decree was
therefore incompetent. It could not have been entertained and
allowed.”
A
B
C
D
E
F
G
H
881
Accordingly, considering the law laid down by the Apex Court in
the case of Kedar Nath(supra) and the specific finding given by the
court below of the provisions of Section 17 of the Act, 1887 not
having been complied with rather having been violated by the
petitioners, this Court does not find any illegality or infirmity in the
orders impugned. Accordingly, the petition is dismissed.”
9. Being aggrieved by the order so passed by the High Court, the
appellants have approached this Court. While considering the petition
leading to this appeal at the initial stage yesterday, i.e., on 01.02.2023
and after taking note of all the facts and circumstances of the case,
when this Court queried learned counsel for the appellants regarding the
amount towards rent/mesne profits until now due, it was submitted that
appellants were ready and willing toimmediately deposit the amount so
due and, at request, the matterwas adjourned for a day.
10. It has been pointed out that today, a sum of Rs.1,90,000/-
(Rupees One Lakh Ninety Thousand) has been deposited by the
appellants in the Trial Court, in compliance of this Court’s order dated
01.02.2023, which is said to be the amount further payable under the
decree in question, being that of rent/mesne profits @ Rs. 2,000/- per
month, from the month of June, 2015 to the month of April, 2023. A
photostat of the tender presented to the Trial Court, with endorsement
of deposit in the bank today, has also been placed before us.
11.
Taking note of the steps so taken by the appellants and in the
totality of circumstances, while granting leave, we have heard learned
counsel for the parties finally at this stage itself.
12. Learned counsel for the appellants has essentially submitted
that the Trial Court and the High Court have taken too rigid a view of the
matter and have failed to consider that the amount directly due under
the decree in question, being a sum of Rs. 8,000/- towards arrears of
rent and another sum of Rs. 3,212/- towards costs had indeed been
deposited by the defendant; and in the given circumstances, the application
for setting aside ex parte decree could not have been dismissed only for
want of deposit of the amount towards further use and occupation of the
suit shop. It has also been submitted that it had not been a case of wilful
avoidance of the requirements of Section 17 of the Act of 1887 and in
any case, the appellants, having now deposited the amount towards rent/
SHYAM KUMAR GUPTA & ORS. v. SHUBHAM JAIN
[DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
H
882
SUPREME COURT REPORTS
[2023] 4 S.C.R.
mesne profits until the month of April, 2023, deserve an opportunity to
contest the suit on merits. Per contra, learned counsel for the respondent
has duly supported the orders impugned and has contended that for want
of specific compliance of the requirements of Section 17 of the Act of
1887 at the time of filing of the application for setting aside ex part
decree, the view as taken by the Trial Court, duly affirmed by the High
Court, cannot said to be unjustified.
13. Having given anxious consideration to the rival submissions
and having examined the record, we are clearly of the view that the
impugned orders cannot be approved and the appellants deserve an
opportunity to contest the suit on merits.
14. Section 17 of the Provincial Small Cause Courts Act, 1887, on
which reliance has been placed by the Trial Court and by the High Court
whiledeclining the prayer for setting aside ex parte decree, reads as
under: -
“17. Application of the Code of Civil Procedure.—(1) The
procedure prescribed in the Code of Civil Procedure, 1908 (5 of
1908), shall save in so far as is otherwise provided by that Code
or by this Act, be the procedure followed in a Court of Small
Causes, in all suits cognizable by it and in all proceedings arising
out of such suits:
Provided that an applicant for an order to set aside a decree
passed ex parte or for a review of judgment shall, at the time of
presenting his application, either deposit in
the Court the amount
due from him under the decree or in pursuance of the judgment,
or give such security for the performance of the decree or
compliance with the judgment as the Court may, on a previous
application made by him in this behalf, have directed.
(2) Where a person has become liable as surety under the proviso
to sub-section (1), the security may be realized in manner
provided by Section 145 of the Code of Civil Procedure, 1908
(5 of 1908).”
14.1. Rule 13 of Order IX of the Code of Civil Procedure, 1908
could also be extracted for ready reference as under: -
“13. Setting aside decree ex part against defendants.- In
any case in which a decree is passed ex parte against a
A
B
C
D
E
F
G
H
883
defendant, he may apply to the Court by which the decree was
passed for an order to set it aside; and if he satisfies the Court
that the summons was not duly served, or that he was prevented
by any sufficient cause from appearing when the suit was called
on for hearing, the Court shall make an order setting aside the
decree as against him upon such terms as to costs, payment into
Court or otherwise as it thinks fit, and shall appoint a day for
proceeding with the suit:
Provided that where the decree is of such a nature that it cannot
be set aside as against such defendant only it may be set aside as
against all or any of the other defendants also:
Provided further that no Court shall set aside a decree passed
ex parte merely on the ground that there has been an irregularity
in the service of summons, if it is satisfied that the defendant had
notice of the date of hearing and had sufficient time to appear and
answer the plaintiffs claim.
Explanation. -Where there has been an appeal against a decree
passed ex parte under this rule, and the appeal has been disposed
of an any ground other than the ground that the appellant has
withdrawn the appeal, no application shall lie under this rule for
setting aside the ex parte decree.”
15. It could be reasonably noticed that in relation to the suit to
which the Act of 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 requirementsneed 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.
15.1. 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 profitsduring the
SHYAM KUMAR GUPTA & ORS. v. SHUBHAM JAIN
[DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
H
884
SUPREME COURT REPORTS
[2023] 4 S.C.R.
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 given circumstances, when the defendant, predecessor
of the appellants, immediately moved the Court after noticing the decree
in question and deposited the amount directly quantified thereunder 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 had not been 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. Looking to the subject-matter of the suit and the overall
circumstances, a practical view was required to be taken and if all any
further deposit or furnishing of security was considered necessary,
appropriate orders could have been passedin that regard. Putting it
differently, in terms of Section 17 of the Act of 1887 read with Order
IX Rule 13 CPC, the Court could have extended the time for making
deposit if so required, or could have put the defendant to the terms of
security for performance of the decree.
15.2. However, for what has been noticed and extracted
hereinabove, it is apparent that Trial Court and the High Court have
viewed the
requirements of Section 17 of the Act of 1887 from such an
exacting and rather impractical standpoint that the bonafide attempt of
the defendant to seek a merit decision of the suit after due contest has
been totally ignored. In our view, in the present set of facts and
circumstances, prayer of the defendant to set aside ex parte decree
could not have been denied for want of further deposit in terms of the
decree in question.
15.3. The High Court, while dismissing the petition filed by the
appellants and endorsing the views of the Trial Court, has proceeded to
rely upon the decision of this Court in the case of Kedarnath(supra),
that the provisions of Section 17 of the Act of 1887 are held to be
mandatory. In our view, reference to the said decision remains inapposite
in the present case. Even if the requirements of Section 17 of the Act of
1887 are held to be mandatory, the present one had not been a case
where the defendant had altogether ignored those requirements. In
Kedarnath (supra), in the very passage reproduced by the High Court,
it was clearly noticed that the applicant did not make any deposit and did
A
B
C
D
E
F
G
H
885
not move any application for dispensing with deposit or seeking leave of
the Court for furnishing security. In the backdrop of such facts, showing
total non-compliance of the requirements of Section 17 of the Act of
1887, this Court held the application for setting aside the decree as
incompetent. It is difficult to apply the decision in Kedarnath (supra) to
the facts of the present case.
16. Apart from the above, where we find that the Trial Court and
the High Court had taken too technical and impractical a view of the
matter, there is another strong reason for which we are inclined to accept
the prayer for setting aside the decree passed ex parte in this case. As
noticed, in response to the queries of this Court,the appellants have
immediately taken bonafide steps and have deposited the amount which
may be relatable to rent/mesne profits until the month of April, 2023. For
this bonafide and prompt step (albeit taken after approaching this Court),in
our view, they do deserve an opportunity to contest the suit on merits,
particularly when the matter relates to a shop where the predecessor of
the appellants had been continuing as tenant and the plaintiff-respondentis
seeking the decree for eviction only on the ground of default in payment
of rent.
17. Accordingly and in view of the above, this appeal succeeds
and is allowed in the manner that while setting aside the impugned orders
dated 01.09.2022 and 21.09.2022, the application filed by the appellants
under Order IX Rule 13 CPC is allowed and thereby, the ex parte
judgment and decree dated 09.03.2016/16.03.2016 are set aside.
Consequently, the said suit shall stand restored for being considered on
its own merits.
18. For the purpose of proceedings in the suit, looking to the time
that has elapsed, it shall definitely be required of the Trial Court to assign
the same a reasonable priority and to proceed expeditiously, while curbing
against unnecessary delay. Further, in the interest of justice, it is also
considered appropriate and hence provided that it shall be required of
the appellants to submit their written statement(s) on or before 28.02.2023
and thereafter, the Trial Court shall proceed with expedition, as indicated
above.
19. As regards the amount deposited by the appellants, we
leave it open for the respondent-plaintiff to apply for its withdrawal,
if so advised; and if any such prayer is made by the plaintiff, the
SHYAM KUMAR GUPTA & ORS. v. SHUBHAM JAIN
[DINESH MAHESHWARI, J.]

A
B
C
D
E
F
G
H
886
SUPREME COURT REPORTS
[2023] 4 S.C.R.
same may be given due consideration by the Trial Court in accordance
with law.
20. The parties through their respective counsel shall stand at
notice to appear before the Trial Court on 28.02.2023.
21. Pending applications also stand disposed of.
Bibhuti Bhushan Bose
Appeal allowed.
(Assisted by : Vinayak and Keya Rebello, LCRAs)