SUPREME COURT HOLDS THAT APPLICATION UNDER ORDER IX RULE 13 CPC CAN BE ALLOWED IN CERTAIN CIRCUMSTANCES

The Two Judge Bench of the Hon’ble #SupremeCourt of India comprising of Justices Ashok Bhushan and R. Subhash Reddy passed a Judgment dated 03.03.2021 in the case of Subodh Kumar v. Shamim Ahmed {Civil Appeal Nos.802-803 of 2021 (arising out of SLP(C) Nos.18118-18119 of 2019)} and held that an Application under Order IX Rule 13 CPC can be allowed only when sufficient cause is made out to set aside #ExparteDecree.

In the present case, the Respondent No.1 was inducted as a Tenant at Rs.150/­ per month by the Landlord (hereinafter Appellant). The dispute relates to a shop being Shop No.39 (29) situated in Compound No.3, Civil Lines, Roorkee, District Haridwar (Property). This Property was purchased by the Appellant via sale deed on 30.01.1991. On 18.03.1994, the Appellant filed a case, S.C.C. case No.4 of 1994 claiming possession, amount of rent, due rent and mesne profit.  Several opportunities were given to the Respondent No. 1 to file a written statement; however he failed to do so. On 24.02.1997, Court passed an order to proceed ex­- parte and on 31.03.1998, S.C.C. case No.4 of 1994 was allowed by ex­-parte judgment.

On 23.05.1997, an Application was filed by the Respondent No. 1 under Section 30(2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (UP 1972 Act), to deposit the rent.  This Application was allowed on 23.05.1997 and the Respondent No. 1 on 07.07.1997 deposited a rent of Rs.16,800/­- for the period of 01.03.1988  to 30.06.1997.

Thereafter, the Respondent No. 1 filed an Application on 25.08.1998 under Order IX Rule 13 CPC along with Application under Section 5 of Limitation Act for condoning the delay to recall the Ex­-parte Decree dated 31.03.1998. However, no deposit was made by the Respondent No. 1 in this regard as was required by Section 17 of the Provincial Small Cause Courts Act, 1887 (the 1887 Act). The Trial Court vide Order dated 19.04.2007 rejected the Application filed by the Respondent No.1 under Order IX Rule 13 and Section 5 of the Limitation Act.

Order IX Rule 13 CPC is reproduced below:

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 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 plaintiff’s 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 that ex parte decree

The Respondent No. 1 then filed a Revision Petition before the District Judge, which was rejected vide Order dated 23.02.2008. Aggrieved by the Order dated 19.04.2007 of the Trial  Court as well as Order dated 23.02.2008 of the District Judge, a Writ Petition was filed by the Respondent No. 1 in the High Court of Uttarakhand (High Court).

The High Court vide Order dated 13.12.2018 set aside the Orders dated 19.04.2007 and 23.02.2008 respectively thereby allowing the Writ Petition and remanded the matter back to the Trial Court for reconsideration of  Respondent’s Application under Order IX Rule 13 CPC and Section 5 of the Limitation Act in accordance with law. Subsequently, the Appellant filed a Special Leave Petition in the Hon’ble Supreme Court of India, which was dismissed and the Appellant was given a liberty to file a Review Application before the High Court, which was also rejected vide Order dated 24.05.2019.

The Appellant aggrieved by the aforesaid Judgments dated 13.12.2018 and 24.05.2019 of  the High Court, filed an Appeal before the Apex Court.

In the Hon’ble Supreme Court of India, the Bench made the following observations:-

1. That Section 17 of the 1887 Act requires an applicant seeking an order to set aside an ex parte decree to 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. Therefore, the compliance of Section 17 of the 1887 Act is a precondition for maintainability of application under Order IX Rule 13 CPC.

 

2. But in this case, the Respondent No. 1 did not comply with the pre-condition of deposit of full rent while filing the Application under Order IX Rule 13 CPC and also while filing an Application under Section 30(2) of the UP 1972 Act. However, the deposit of rent, if any, under Section 30(2) of the UP 1972 Act in the present case cannot be treated to be deposit for the purposes of Section 17 of the 1887 Act.

 

3. Further, an application under Order IX Rule 13 CPC can be allowed only when sufficient cause is made out to set aside the ex­parte decree. In the present case, the Respondent No. 1 has not established any sufficient cause to set aside the Ex­Parte Decree.

 

Thus, allowing the Appeal, the Apex Court held that the Respondent No. 1 failed to make out any sufficient ground to allow the Application under Order IX Rule 13 CPC and the High Court erred in interfering with the Order of the Trial Court. Furthermore, the Bench directed the Executing Court to execute the Decree and put the Appellant in possession along with the payment of entire decretal amount up to date, within a period of three months from the date of submission of a copy of the Judgment before the Executing Court.

 

Suchitra Upadhyay

Associate

The Indian Lawyer & Allied Services