Case Note & Summary
The petitioners, tenants, were subjected to an ex parte decree for eviction and possession passed by the Court of Small Causes on 19.09.2013 under Section 33 of the Maharashtra Rent Control Act. The tenants filed M.J.C. No.01 of 2014 under Order 9 Rule 13 of the Code of Civil Procedure, 1908, on 20.12.2013, along with an application for condonation of delay, seeking to set aside the ex parte decree. The Small Causes Court dismissed the application solely on the ground that there was non-compliance with Section 17(1) of the Provincial Small Cause Courts Act, 1887, which requires the deposit of the decretal amount or furnishing of security. The tenants challenged this dismissal in Misc. Civil Appeal No.206 of 2014 under Section 34 of the Maharashtra Rent Control Act, which was also dismissed. The tenants then filed the present writ petition. The High Court examined the provisions of Section 17(1) of the Provincial Small Cause Courts Act, 1887, and Order 9 Rule 13 CPC. It noted that Section 17(1) applies to suits for recovery of possession of immovable property and requires the defendant to deposit the amount due or furnish security as a condition for being heard in the suit. However, the Court held that this requirement is not a condition precedent for entertaining an application under Order 9 Rule 13 CPC to set aside an ex parte decree. The Court reasoned that the purpose of Section 17(1) is to ensure that the tenant deposits rent during the pendency of the suit, but once a decree is passed, the provision does not bar the court from considering an application to set aside the decree. The Court set aside the orders of the Small Causes Court and the appellate court and remanded the matter back to the Small Causes Court for fresh consideration of the application under Order 9 Rule 13 CPC on its own merits, including the issue of delay. The Court directed the Small Causes Court to decide the application within three months from the date of appearance of the parties.
Headnote
A) Civil Procedure - Ex Parte Decree - Setting Aside - Condition Precedent - Section 17(1) Provincial Small Cause Courts Act, 1887 - Order 9 Rule 13 Code of Civil Procedure, 1908 - The Court held that compliance with Section 17(1) of the Provincial Small Cause Courts Act, 1887, requiring deposit of decretal amount or furnishing security, is not a condition precedent for entertaining an application under Order 9 Rule 13 CPC to set aside an ex parte decree. The Small Causes Court erred in dismissing the application solely on the ground of non-compliance with Section 17(1). (Paras 2-6)
Issue of Consideration
Whether compliance with Section 17(1) of the Provincial Small Cause Courts Act, 1887, requiring deposit of decretal amount or furnishing security, is a condition precedent for entertaining an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908, to set aside an ex parte decree passed under Section 33 of the Maharashtra Rent Control Act.
Final Decision
The High Court allowed the writ petition, set aside the orders dated 30.06.2014 passed by the Court of Small Causes and the order dated 30.04.2015 passed in Misc. Civil Appeal No.206 of 2014, and remanded the matter back to the Court of Small Causes for fresh consideration of M.J.C. No.01 of 2014 on its own merits, including the issue of delay. The Small Causes Court was directed to decide the application within three months from the date of appearance of the parties.
Law Points
- Section 17(1) of Provincial Small Cause Courts Act
- 1887
- Order 9 Rule 13 CPC
- Section 33 of Maharashtra Rent Control Act
- Condonation of delay
- Ex parte decree
- Deposit of decretal amount
Case Details
2015 LawText (BOM) (10) 151
Writ Petition No.4690 of 2015
Shri M.A. Qureshi for Petitioners, Shri V.K. Paliwal for Respondent Nos.1 to 3, 5, 10, 13 to 16
Salim s/o Miyan Khan Lassiwale and Smt. Shahzadi Begum w/o Mohd. Israil
Majlis Madarsa-E-Islamia Society and others
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Writ petition challenging the dismissal of an application under Order 9 Rule 13 CPC to set aside an ex parte decree for eviction, on the ground of non-compliance with Section 17(1) of the Provincial Small Cause Courts Act, 1887.
Remedy Sought
The petitioners (tenants) sought to set aside the ex parte decree for eviction and possession passed against them, and to have their application under Order 9 Rule 13 CPC considered on merits.
Filing Reason
The Small Causes Court dismissed the tenants' application under Order 9 Rule 13 CPC solely on the ground that they had not complied with Section 17(1) of the Provincial Small Cause Courts Act, 1887, by depositing the decretal amount or furnishing security.
Previous Decisions
The Court of Small Causes passed an ex parte decree for eviction and possession on 19.09.2013. The tenants filed M.J.C. No.01 of 2014 under Order 9 Rule 13 CPC on 20.12.2013, which was dismissed on 30.06.2014. The appeal under Section 34 of the Maharashtra Rent Control Act (Misc. Civil Appeal No.206 of 2014) was also dismissed.
Issues
Whether compliance with Section 17(1) of the Provincial Small Cause Courts Act, 1887, is a condition precedent for entertaining an application under Order 9 Rule 13 CPC to set aside an ex parte decree.
Submissions/Arguments
The petitioners argued that the Small Causes Court erred in dismissing their application under Order 9 Rule 13 CPC solely on the ground of non-compliance with Section 17(1) of the Provincial Small Cause Courts Act, 1887, as that provision does not apply to applications for setting aside ex parte decrees.
The respondents supported the impugned orders, contending that Section 17(1) requires deposit of the decretal amount as a condition for any proceeding in the suit, including an application to set aside the decree.
Ratio Decidendi
Compliance with Section 17(1) of the Provincial Small Cause Courts Act, 1887, requiring deposit of decretal amount or furnishing security, is not a condition precedent for entertaining an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908, to set aside an ex parte decree. The provision applies to the hearing of the suit, not to post-decree proceedings.
Judgment Excerpts
The Court of Small Causes trying a suit between the landlord and the tenant under Section 33 of the Maharashtra Rent Control Act has passed an ex parte decree for eviction and possession on 19.09.2013 against the petitioner – tenant.
The Court of Small Causes dismissed it solely on the ground that there was non-compliance of Section 17(1) of the Provincial Small Cause Courts Act, 1887 to deposit the decretal amount or to furnish the security as required by the said provision.
The question involved is whether compliance of Section 17(1) of the Provincial Small Cause Courts Act, 1887 is a condition precedent for entertaining an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908.
In my view, the requirement of Section 17(1) of the Provincial Small Cause Courts Act, 1887 is not a condition precedent for entertaining an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908.
The order passed by the Court of Small Causes dismissing the application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 solely on the ground of non-compliance of Section 17(1) of the Provincial Small Cause Courts Act, 1887 cannot be sustained.
Procedural History
The Court of Small Causes passed an ex parte decree for eviction and possession on 19.09.2013. The tenant filed M.J.C. No.01 of 2014 under Order 9 Rule 13 CPC on 20.12.2013, along with an application for condonation of delay. The Small Causes Court dismissed the application on 30.06.2014 solely on the ground of non-compliance with Section 17(1) of the Provincial Small Cause Courts Act, 1887. The tenant appealed under Section 34 of the Maharashtra Rent Control Act in Misc. Civil Appeal No.206 of 2014, which was also dismissed. The tenant then filed the present writ petition under Article 227 of the Constitution of India.
Acts & Sections
- Provincial Small Cause Courts Act, 1887: Section 17(1)
- Code of Civil Procedure, 1908: Order 9 Rule 13
- Maharashtra Rent Control Act: Section 33, Section 34
