Legal Question in Landlord & Tenant Law in India

NOTICE FROM SMT. PREETY GARG, W/O SHRI ABHISHEK GARG, R/O L - 465, SHASTRI NAGAR MEERUT THROUGH SHRI SUDHIR KUMAR SHARMA, ADVOCATE, MEERUT OFFICE CHAMBER NO. 152, COLLECTORATE COMPOUND, (BETWEEN ELECTION OFFICE AND JAIN MILAN PIAU ROUNDABOUT KUTCHERY, MEERUT)

TO

SHRI JAI RAJ SINGH, S/O SHRI BALBIR SINGH, R/O KP - 41 (NEAR ZONAL PARK), GANGA NAGAR, MEERUT.

My client Smt. Preety Garg, W/o Shri Abhishek Garg, R/o L - 465, Shastri Nagar Meerut has directed me to serve the following notice upon you:-

1. That my client is the owner of the aforesaid House No. KP - 41 (Near Zonal Park) Ganga Nagar Meerut.

2. That my client rented out her house (KP - 41 Near Zonal Park, Ganga Nagar, Meerut)on 01.08.2009 for Rs. 4000/- (Rupees Four Thousand) per mensem which according to the English Calendar commences on the first day and ends on the last day of a month respectively. And since the above house is newly constructed, Act 13 of 1972 does not apply.

3. That initially for three months you timely paid rent to my client but after expiry of the first three months i.e. from November 2009 you stopped paying rent to my client and also did not pay the electricity bill. When my client asked for both payment of rent and payment of electricity bill you stated that you were at that time in some problem or the other and you would in the following month pay all the balance rent and pending electricity dues. My client believing you agreed to what you said and also requested that you without fail pay the electricity dues because in the event of disconnection of electricity for want of payment of bills, it would be opprobrious for me. However, as promised by you, you did not pay the rent to my client.

4. That whenever my client demanded rent from you you eschewed the same on some pretext or the other. There is a balance of rent from 01/11/2009 to 01/05/2012 which you have not paid despite my client's repeated requests.

5. That my client has approximately for the past one and a half years repeatedly asked you to vacate the house and pay the balance rent but you have been continuously obstinate to pay heed to her requests.

6. That on 14/05/2012, when my client told you that now a lot of time had elapsed and that you clear all the rent dues and also vacate the house by giving empty possession to her, you bluntly told my client that she may do whatever possible by her and that you would neither pay the rent nor vacate the house.

Therefore, under Section 106 of TP Act, you are hereby informed that within a period of 30 days after receipt of this notice, you besides paying my client the entire balance rent for 31 months amounting to Rs. 1,24,000 (Rupees One Lakh Twenty Four Thousand) along with interest thereon, give vacant possession of the house to my client. In case you do not hand over the vacant possession of the house to my client within 30 days, it would be deemed as unauthorised occupation on your part, in the event of which you would be liable to pay damages to dthe tune of Rs. 5000/- per mensem. In the event of not doing so, my client would be forced to initiate legal action against you in the appropriate court of law and you would be responsible for all costs and damages thereof. You may preserve this notice. One copy of this is safe in my office since it could be presented in the court as and when so required.

(SIR THE ABOVE NOTICE WAS SENT ON 15/05/2012 UNDER REGD/AD COVER AND RECEIVED BY SHRI JAIRAJ SINGH ON 17/05/2012)

NOTICE IN REPLY SENT BY SHRI JAI RAJ SINGH S/O SHRI BALBIR SINGH THROUGH HIS ADVOCATE ON 26/05/2012.

Reply notice by Shri Jai Raj Singh, S/o Shri Balbir Singh, R/o KP-41 Near Zonal Park, Ganga Nagar, Meerut through Sunil Verma, Advocate, Room No. 63, CCS Law Chambers, Civil Court, Meerut.

TO

Shri Sudhir Kumar Sharma, Advocate, Meerut Office Chamber NO. 152, Collectorate Compound, Between Election Office and Jain Milan Piau Roundabout, Kutchery Meerut.

Sir,

The notice dated 15.05.2012 served through you by your client to my client is replied as under:

1. That the facts & statements as contained in Para - 1 of your notice are correct.

2. That the facts and statements contained in Para - 2 of your notice are false. My client had taken on rent the aforesaid house on a monthly rent of Rs. 3000/-(Rupees Three Thousand) and also had given Rs. 2,50,000/- (Rupees Two Lakh Fifty Thousand) as security and that after one year on 01.04.2009 your client had increased the rent by Rs. 500/- per mensem taking it to Rs. 3500/- per mensem, which my client has regularly been paying to your client.

3. That the facts and statements contained in Para - 3 of your notice are false. My client has right from the beginning till date been paying rent and the electricity bills.

4. That the facts and statements contained in Para - 4 of your notice are wrong. My client has never eschewed paying rent on one pretext or the other and there are no dues on account of rent. Instead my client has given a security deposit of Rs. 2,50,000/- to your client which is in her possession.

5. That the facts and statements contained in Para - 5 of your notice are wrong. Your client had never asked my client to vacate the house and infact my client has come to know of such intention through your notice. My client has no objection in vacating the house.

6. That the facts and statements contained in Para - 6 of your notice are false. Your client had not asked my client to vacate the house on 14/5/2012. Even then, if your client wants my client to vacate the house and take over empty possession, my client has no objection to the same. Your client may return the Rs. 2,50,000/- which my client gave as security deposit along with interest thereon and obtain a receipt for the same.

7. That your client by taking support of false and wrong facts is trying to establish my client a defaulter and also wants to confiscate Rs. 2,50,000/- of my client.

8. That my client has never delayed in paying rent and that my client has always paid the rent on time and your client has by wrongly blaming my client made you serve the said notice.

9. That my client has been a bonafide tenant and even then if your client wants my client to vacate the house, my client would vacate the house and your client shall also have to pay to my client the Sum of Rs. 2,50,000/- given as security along with interest thereon. In the event of non-compliance my client would sue your client under Section 406 IPC the costs and damages of which would be borne by your client.

Therefore, this may be treated as serial wise and para wise reply to the notice dated 15/05/2012 served by you and that my client is ready to vacate the aforesaid house of your client and I request that the amount of Rs. 2,50,000/- given as security be refunded along with interest thereon.

On the basis of above, a legal suit was filed in the court of the ADJ Meerut on 03/07/2012 and the same proceeded ex-parte as the tenant, Jairaj Singh never turned up in the court on any of the hearing dates. The ADJ finally passed an ex-parte decree on 16.01.2013.

Further progress of the matter is as under:

IN THE COURT OF THE HONOURABLE ADDITIONAL DISTRICT JUDGE, COURT No. 10 MEERUT

OBJECTIONS TO THE MISCELLANEOUS APPLICATION No. Year 2013 IN THE MATTER OF

SMT. PREETY GARG, W/o SHRI ABHISHEK GARG

R/o L - 465 SHASTRI NAGAR MEERUT------------------------------

APPLICANT/PLAINTIFF

Vs

SHRI JAIRAJ SINGH, S/o SHRI BALBIR SINGH

R/o KP - 41 (NEAR ZONAL PARK) GANGA NAGAR MEERUT--------

RESPONDENT/DEFENDANT

PERTAINING TO S.C.C. SUIT No. 44 OF 2012

Respected Sir,

By way of this objection application, I object to the very maintainability of the tenant/respondent's subject Miscellaenous Application No. Year 2013 for the following reasons/facts:

- That the contention of the tenant/respondent that he was not in due receipt of the summons pertaining to the suit in question is baseless and false. In this connection, The Hon.Supreme Court in its Judgment Parimal v. Veena @ Bharti has examined the provisions of Order IX Rule 13 of the Code of Civil Procedure, 1908. which speaks of conditions under which an Ex-Parte Decree can be set aside. While examining the various judicial precedents on the provision, the Hon. Supreme Court held as under:

Order IX, R.13 CPC:

The aforesaid provisions read as under:

"Setting aside decree ex-parte against defendant In any case in which a decree is passed ex-parte against a 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 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 plaintiff's claim.

- That, it is evident from the above that an ex-parte decree against a defendant has to be set aside if the party satisfies the Court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court.

The legislature in its wisdom, made the second proviso, mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein.

- That the expression "Sufficient Cause" is an expression which has been used in large number of Statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the

court

exercises discretion, it has to be exercised judiciously. (Vide: Ramlal & Ors. v. Rewa Coalfields Ltd., AIR 1962 SC 361; Sarpanch, Lonand Grampanchayat v. Ramgiri Gosavi & Anr., AIR 1968 SC 222; Surinder Singh Sibia v. Vijay Kumar Sood, AIR 1992 SC 1540; and Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation & Another, (2010) 5 SCC 459).

- That, in order to determine the application under Order IX, Rule 13 CPC, the test that has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence.

- That, I present a list of the enormous correspondence entered into with the tenant's employer, Government Machinery (Both State and Central), scheduled banks, the jurisdictional police station (Where an FIR has also been lodged against the tenant for utilising forged signatures of my husband for his own benefit) etc. wherein the fact of the subject suit in progression has explicitly been mentioned. Therefore, the contention of the tenant that he had no knowledge, despite the fact that the summons had been duly served, of the subject suit being in progress is utterly baseless and false. Thus there can be no reason whatsoever for him to contend that he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the

- That the statement of the tenant that I had on the 15th of January 2013 gone to his place of residence i.e. KP - 41 (Near Zonal Park) Ganga Nagar, Meerut to apprise him of the date of judgment in the subject suit and further threatening him that his household belongings would be got thrown out after the arrival of the judgment is utterly false and holds no truth whatsoever.

- That, the application of the tenant/defendant under Order 9 Rule 13 of the C.P.C. 1908, which is being objected to herein, is liable to be rejected in view of the judgment given by the Hon. High Court at Allahabad, Uttar Pradesh in CIVIL REVISION No. 65 of 2013 (A certified copy of which is attached please). The main points thereto are:

- That the tenant/defendant had filed a CIVIL REVISION No. 65 of 2013 in the Hon. High Court at Allahabad against the decree imparted by the learned ADJ in SUIT No. 44 of 2012 on 16.01.2013.

- That vide its order dated 21.2.2013, the Hon. High Court at Allahabad dismissed the revision No. 65 of 2013, giving liberty to the tenant/defendant to file a restoration application which would be decided on merits.

- That the threshold of filing the restoration application by the tenant/defendant was 05.03.2013 and it had to be supported with a delay condonation application.

- That such a restoration application would be maintainable only if the provisions of Section 17 of P.S.C.C. Act were duly complied with.

- That until decision of a valid restoration application rent/damages fdor use and occupation at the rate of Rs. 4000/- per month are to be deposited by 7th of each suceeding month which shall immediately be paid to me and

- That the restoration case is not unduly delayed by the tenant/defendant.Judgment

- That in the instant case since neither the tenant/defendant has deposited the decretal amount nor moved a previous application in this regard, prior to his filing an application under Order 9 Rule 13 and since as such has completely failed to comply with the orders of the Hon. High Court at Allahabad to comply with the provisions of Section 17 of the P.S.C.C. Act, the RESTORATION APPLICATION OF THE TENANT/DEFENDANT IS LIABLE TO BE SUMMARILY REJECTED.

- That in this connection the following judgment of the Hon. Supreme Court of India has unrestraining effect please:

CASE NO:

Appeal (civil) 5109 of 1999

PETITIONER:

KEDARNATH

Vs.

RESPONDENT:

MOHAN LAL KESARWARI & ORS.

DATE OF JUDGMENT: 10/01/2002

BENCH:

R.C. Lahoti & Brijesh Kumar

JUDGMENT:

R.C. Lahoti, J.

The landlord-appellant filed a suit for recovery of arrears of rent

and for eviction against the tenant-respondents on the ground

available under Clause (a) of sub-Section (2) of Section 20 of U.P.

Urban Buildings (Regulation of Letting, Rent and Eviction) Act,

1972, hereinafter U.P. Urban Buildings Act, for short. A suit of the

nature filed by the appellant being triable by a court of small causes,

as provided by the U.P. Civil Laws Amendment Act, 1972 was filed

in the Court of Small Causes, Allahabad. On 9.8.1996, the suit came

to be decreed ex-parte. The decree directed the tenant-respondents to

pay an amount of Rs.8500/- as pre-suit arrears of rent and a further

amount calculated at the rate of Rs.250/- per month from the date of

institution of suit to the date of recovery of possession. A decree for

eviction was also passed. The decree was put to execution and on

21.2.1998 the decree-holder obtained possession over the suit

premises with police help. The court amin certified the delivery of

possession to the executing court. On 26.2.1998, the tenant-

respondents moved an application under Order 9 Rule 13 of the

C.P.C. seeking setting aside of the ex-parte decree. Neither the

amount due under the decree was deposited nor an application was

filed seeking direction of the court to give security for the

performance of the decree in lieu of depositing the decretal amount.

On 14.10.1998, arguments were heard on the application under Order

9 Rule 13 of the C.P.C.. The court appointed 16.10.1998 for orders.

It appears that during the course of hearing the appellant

decree-holder pointed out to the court that the application seeking

setting aside of the ex-parte decree was not maintainable and was

liable to be dismissed in limine for non-compliance with proviso to

Section 17 of the Provincial Small Cause Courts Act, 1887

(hereinafter, 'the PSCC Act', for short). On 15.10.1998, the tenant-

respondents filed an application praying that they may be permitted to

furnish security for payment of decretal amount. The reason assigned

for failure to deposit the amount due under the decree or to furnish

security alongwith the application seeking setting aside of the ex-parte

decree is somewhat oscillating. At one place at is stated that their

advocate had never advised them to deposit the decretal amount as the

advocate himself was not aware of the provision. Then, at another

place, it is stated that the rent was already paid to the landlord decree-

holder and there were no arrears required to be deposited. At yet

another place it is stated that their advocate had advised them that on

the application seeking setting aside of the ex-parte decree being

allowed and the suit being restored to file, on the first date of hearing

the tenant has to deposit the rent in arrears which would be done at

that stage only. Vide order dated 15.11.1998, the learned Judge,

Small Causes, rejected the application filed by the tenant-respondent

forming an opinion that ignorance of law was not excusable and the

application under Order 9 Rule 13 of C.P.C. filed without complying

with proviso to Section 17 of the PSCC Act was not maintainable.

The tenant-respondents preferred a revision in the court of

Additional District Judge, which was allowed. The learned Additional

District Judge vide order dated 22.4.1999, condoned the delay in

moving the application dated 15.10.1998 and directed the trial court to

accept security as proposed and hear and decide the application under

Order 9 Rule 13 of the C.P.C. on merits. The abovesaid revisional

order was put in issue by the landlord-appellant by filing a writ

petition under Article 226 and 227 of the Constitution before the High

Court, which has been rejected. The landlord has filed this appeal by

special leave.

Mr. Gourab K. Banerji, the learned counsel for the appellant

has made two submissions: firstly, that the proviso to Section 17 of

the Act is mandatory in its character and non-compliance therewith

cannot be condoned; and secondly, assuming that the court has power

to condone the delay in making the deposit or furnishing the security

on the principles deducible from Section 5 of the Limitation Act, even

then no sufficient cause was made out for belated offer to make

compliance and in as much as the landlord has already secured

possession of the premises, the tenant-respondents' application was

liable to be rejected.

It is not disputed at the Bar that such a suit as was filed by the

landlord-appellant is, in the State of U.P., to be heard and disposed of

by a court of small causes and hence would be governed by the

provisions of the PSCC Act. Section 17 thereof provides as under:

"7. Application of the Code of Civil

Procedure.- (1) The procedure prescribed in the

Code of Civil Procedure, 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 the

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."

It is relevant to note that the proviso to sub-Section (1) of Section 17

has undergone a material change through an amendment brought in by

Act No.IX of 1935. Earlier there were the words- "security to the

satisfaction of the Court for the performance of the decree or

compliance with the judgment, as the court may direct" which have

been deleted and substituted by the present words - "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". The Statement of Objects and Reasons for the 1935

amendment was set out as under:

"The Act is designed to remove certain doubts

which have arisen in the interpretation of the

proviso to sub-section (1) of Section 17 of the

Provincial Small Cause Courts Act, 1887. As the

section stands, an applicant is required to give

security to the satisfaction of the Court at the time

of presenting his application. It follows that, in

order to ascertain what security satisfies the Court,

the applicant must already have made an

application in that behalf. There is some doubt

whether the words "as the Court may direct" apply

to the deposit of the whole decretal amount as well

as to the giving of approved security. The Act is

intended to make it clear that the preliminary

application to ascertain what security will satisfy

the Court must be made and decided before the

substantive application for the order to seet aside

the decree, and that it always is open to the

applicant to adopt the alternative course of

depositing the total decretal amount. (Vide

Statement of Objects and Reasons, Gazette of

India, 1935, Pt. V, p.90)."

The object behind establishing Small Cause Courts conferred

with jurisdiction to try summarily such specified category of cases

which need to be and are capable of being disposed of by adopting

summary procedure of trial is to secure an expeditious disposal and to

curtail the lengthy procedure of litigation. Excepting an order for

compensatory costs in respect of false or vexatious claims or

defences or an order imposing fine or directing the arrest or detention

in the civil prison of any person (except where such arrest or detention

is in execution of a decree), orders and decrees of courts of small

causes are not appealable: they are only revisable by the High Court

(or by District Court under Section 115 of CPC as amended in its

application to State of U.P.). The jurisdiction to entertain and hear an

application to set aside a decree passed ex-parte or for a review of

judgment by courts of small causes is sought to be qualified and

narrow down by imposing condition as to deposit or giving security

for performance or compliance by enacting proviso to sub-section (1).

Such a provision fits in the scheme of the PSCC Act. Although there

is no authoritative pronouncement by this Court (none brought to our

notice) interpreting the nature and scope of the proviso however, the

learned counsel for the appellant brought to our notice a number of

decisions delivered by the High Courts of Allahabad, Oudh, Madras,

Orissa, Rajasthan and Lahore which have taken the view that the

proviso is mandatory and non-compliance therewith would entail

dismissal of the application because such non-compliance cannot be

condoned or overlooked by the court. They are, to wit : Mohammad

Ramzan Khan Vs. Khubi Khan AIR 1938 Lahore 18 (DB), Murari

Lal Vs. Mohammad Yasin AIR 1939 Allahabad 46, Mt. Shikhani

Vs. Bishambhar Nath AIR 1941 Oudh 103, Jagdamba Prasad & Ors.

Vs. Ram Das Singh & Anr. AIR 1943 Allahabad 288, Roshan Lal

Vs. Brij Lal Amba Lal Shah- AIR 1944 Oudh 104, Vembu Amal Vs.

Esakkia Pillai AIR 1949 Madras 419, Khetra Dolai Vs. Mohan

Bissoyi AIR 1961 Orissa 37, and Dhanna Vs. Arjun Lal AIR 1963

Rajasthan 240. As the present case arises from the State of Uttar

Pradesh, the learned counsel for the appellant cited a series of

decisions delivered by Allahabad High Court so as to show the view

of the law being consistently taken there. These are : Krishan Kumar

Vs. Hakim Mohd. 1978 ALJ 738, Sharif Vs. Suresh Chand & Ors.

1979 AWC 256, Roop Basant Vs. Durga Prasad & Anr. 1983 1

ARC 565, Mohd. Islam Vs. Faquir Mohammad 1985 1 ARC 54,

Krishan Chandra Seth Vs. Dr. K.P. Agarwal & Anr. - 1988 1 ARC

310, Mamta Sharma Vs. Hari Shankar Srivastava & Ors.- 1988 1

ARC 341, Mohd. Yasin Vs. Jai Prakash 1988 2 ARC 575,

Purshottam Vs. Special Additional Sessions Judge, Mathura & Ors.

1991 2 ARC 129, Ram Chandra (deceased L.Rs.) & Ors. Vs. IXth

Additional District Judge, Varanasi & Ors.- AIR 1991 Allahabad 223,

Sagir Khan Vs. The District Judge, Farrukhabad & Ors. - 1996 27

ALR 540, Mohammad Nasem Vs. Third Additional District Judge,

Faizabad & Ors. AIR 1998 Allahabad 125, and Beena Khare Vs.

VIIIth Additional District Judge, Allahabad & Anr. 2000 2 ARC

616.

The learned counsel for the respondent brought to our notice

Surendra Nath Mittal Vs. Dayanand Swarup and Anr. AIR 1987

Allahabad 132, Chigurupalli Suryanarayana Vs. The

Amadalavalasa Co-operative Agricultural Industrial Society Ltd.

AIR 1975 A.P. 196 and Tarachand Hirachand Porwal Vs. Durappa

Tavanappa Patravali AIR 1943 Bombay 237. All the three

decisions are single Bench decisions. Suffice it to observe that the

first two decisions are more or less ad hoc decisions which do not

notice other decisions and the general trend of judicial opinion. The

view propounded therein does not appeal to us. The Bombay decision

does not lay down any general proposition of law and proceeds on its

own facts.

A bare reading of the provision shows that the legislature have

chosen to couch the language of the proviso in a mandatory form and

we see no reason to interpret, construe and hold the nature of the

proviso as directory. An application seeking to set aside an ex-parte

decree passed by a Court of Small Causes or for a review of its

judgment must be accompanied by a deposit in the court of the

amount due from the applicant under the decree or in pursuance of the

judgment. 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 up to 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.

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.

The trial court was therefore right in rejecting the application.

The District Judge in exercise of its revisional jurisdiction could not

have interfered with the order of the trial court. The illegality in

exercise of jurisdiction by the District Court disposing of the revision

petition was brought to notice of the High Court and it was a fit case

where the High Court ought to have in exercise of its supervisory

jurisdiction set aside the order of the District Court by holding the

application filed by the respondent as incompetent and hence not

entertainable. We need not examine the other question whether a

sufficient cause for condoning the delay in moving the application for

leave of the court to furnish security for performance was made out or

not and whether such an application moved at a highly belated stage

and hence not being a 'previous application' was at all entertainable

or not.

The appeal is allowed.The impugned orders of the District

Court and the High Court respectively dated 22.4.1999 and 18.5.1999

are set aside and the order of the trial court dated 15.11.1998 is

restored. No order as to the costs.

..........J

( R.C. LAHOTI )

...J

( BRIJESH KUMAR )

January 10, 2002

2012 indiac

- That the above judgment has been a landmark judgment in similar cases as under:

1. CIVIL WRIT PETITION No. 52851 of 2008 (Dev Pal alias Guddu Mistri Vs. Jalaj Singh) in Court No. 7 of the Hon. High Court of Judicature at Allahabdad

2. CIVIL REVISION No. 15 of 2010 (Dhirendra Kumar Agarwal Vs. Smt. Jannatun Nisha) in Reserved/Court No. 4 of the Hon. High Court of Judicature at Allahabad. Herein, interalia, it has been categorically stated:

- That the proviso to Section 17 of the P.S.C.C. Act is mandatory.

- That the application seeking to set aside a decree to review must be accompanied by a deposit of decretal amount in court

- That the proviso does not provide for the extension of time to make the deposit or furnish security subsequently.

3. WRIT - C No. - 25524 of 2012 (Ramji Thakkar @ Ramesh Thakkar Vs. DJ, Kanpur Nagar and Others) in Court No. 33 of the Hon. High Court of Judicature at Allahabad.

In view of the foregoing facts, Sir, it is requested that since the Restoration Application of the tenant/defendant is not maintainable, it may be SUMMARILY BE REJECTED PLEASE AND AS PRAYED THE AMIN MAY KINDLY BE ORDERED TO DO THE NEEDFUL ALONG WITH POLICE FORCE SO THAT I GET VACANT POSSESSION OF MY PROPERTY.

It is proposed to file the above objection in the Hon. Court at Meerut

I may kindly be advised on the merits and demerits of the case.

2 Answer from Attorneys

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