Manoj Kumar Gupta - (1.) The instant petition seeks to challenge the order dated 16.4.2015 passed by Court of Small Causes in Misc. Case No.96 of 2013 rejecting the application of the petitioner under Order 9 Rule 13 CPC and the order dated 19.8.2015 passed by Additional District Judge, Court No.14, Varanasi in Rent Revision No.12 of 2015 dismissing the same.
(2.) The petitioner was tenant of a residential premises on first floor of building No.D-18/16 Mohallah Ahilyabai Brahmapuri, Varanasi on behalf of plaintiff-respondent (for short 'the landlord'/'plaintiff-landlord') on payment of a rent of Rs.200/- per month. A suit bearing No.61 of 2010 was instituted by the landlord in the Court of Small Causes against the petitioner for recovery of arrears of rent and for eviction after terminating the tenancy by notice dated 6.9.2010. The service of summons was effected by normal mode through the process server as well as by registered post. The summons as well as the registered cover were received back with the endorsement of refusal. The trial court, by order dated 3.8.2011, held service of summons to be sufficient on basis of endorsement of refusal made by Postman on the registered cover. The suit was decreed exparte on 22.2.2012. On 11.7.2013 the petitioner filed an application under Order 9 Rule 13 CPC seeking an order for setting aside the exparte decree. The application was accompanied by another application under Section 5 of the Limitation Act for condoning the delay in filing the restoration application. On 28.10.2013, the petitioner filed an application supported by affidavit seeking permission to deposit the decreetal amount in compliance of Section 17 of the Provincial Small Cause Courts Act, 1887 (for short 'the Act'). The landlord filed objection against the said application contending that compliance of Section 17 ought to have been made at the time of presenting the application under Order 9 Rule 13 CPC. Consequently, the application filed on 28.10.2013 remained pending. On 4.4.2014, another application was filed by the petitioner with the same prayer. On 11.7.2014, the said application was allowed and the petitioner was permitted to deposit the decreetal amount on his own risk. The petitioner claims to have deposited Rs.28,000/- towards the amount due from him under the decree. The trial court, by order dated 16.4.2015, rejected the application under Order 9 Rule 13 CPC holding that the petitioner had failed to comply with the provisions of Section 17 of the Act. It also held that the provisions of Section 17 are mandatory in character placing reliance on the judgement of the Supreme Court in Kedar Nath Vs. Mohal Lal Kesarwani and another, 2002 1 ARC 186 and other decisions of this Court. It was held that the deposit of the amount due under the decree should have been made at the time of presenting the application under Order 9 Rule 13 CPC, but since the deposit was made with considerable delay much after the filing of the application under Order 9 Rule 13 CPC, therefore, the same could not be taken into consideration. The revisional court also took the same view and dismissed the revision.
(3.) Counsel for the petitioner submitted that the object of Section 17 of the Act is to protect the interest of the decree holder and the said purpose stood achieved, as the decreetal amount was deposited on 11.4.2014, much before application under Order 9 Rule 13 came up for consideration, therefore, it is urged that the petitioner had substantially complied with the provisions of the Act and the courts below were not justified in declining to decide the application on merits. Alternatively, it was contended that service of summons was not effected by the trial court in accordance with the procedure prescribed under Order 5 CPC. It was urged that the service upon the petitioner was held to be sufficient on basis of endorsement of refusal made by the Postman, although according to learned counsel for the petitioner, service of summons by registered post is no more a recognised mode of service consequent to deletion of Rule 19-A of Order 5 by Act No.46 of 1999 w.e.f. 1.7.2002. Elaborating his submission, it was urged by learned counsel for the petitioner that once service by registered post is not a recognised mode of service, the court below erred in holding service of summons upon the petitioner as sufficient on basis of the endorsement of refusal made by the Postman. According to him, this amounts to procedural irregularity, a fault committed by the court itself. Consequently, the resultant exparte decree ought to have been recalled by the court in exercise of its inherent power under Section 151 CPC without insisting upon compliance of Section 17 of the Act. In support of the said contention, he has placed reliance upon the judgments of this Court in Balbir Singh Chauhan Vs. Vijai Kumar Agarwal, 1987 1 AWC 388, Akttaryar Khan Vs. Azahar Yar Khan,1994 AIR(All) 1993 and Kamta Prasad Vs. Jaggiya, 1999 AIR(All) 184.;