Allahabad HC: Compliance of Section 17 of Provincial Small Causes Courts Act, 1887 necessary before filing an application under Order IX Rule 13 CPC

On Thursday, the Allahabad High Court ruled that no application under Order IX Rule 13 of the Code of Civil Procedure (CPC) can be filed without compliance of Section 17 of the Provincial Small Causes Courts Act, 1887. 

The bench of Justice Neeraj Tiwari was presiding over a petition challenging the judgment and order passed by the Additional District Judge, wherein the application under Order 9 Rule 13 C.P.C. for setting aside the ex-parte judgment and decree was rejected.

The plaintiffs-respondents had filed a Suit for eviction and payment of rent, which was ex parte decided. The petitioner-defendant then filed an application under Order IX Rule 13 read with Section 151 of 5 CPC without compliance of Section 17 of Provincial Small Causes Courts Act, 1887. This application was dismissed and the petitioner-defendant subsequently moved a restoration application, which was allowed with the observation to comply with Section 17 of the Act, 1887.

The bench noted that no application under Order IX Rule 13 of CPC can be filed without compliance of Section 17 of Act, 1887. 

The petitioner had failed to comply with Section 17 of Act, 1887 when filing the application dated 29.2.2020, which was ultimately dismissed in default vide order dated 12.2.2021. The bench opined that no one can take benefit of their own fault and that the dismissal of the petition/application in default was solely due to the fault of the counsel for the party. 

Therefore, the petitioner was not entitled to any relief to comply with the provision of Section 17 of Act, 1887 after filing an application under Order IX Rule 13 of CPC read with 151 CPC.

The bench also stated that both the Courts had considered each and every aspect and had rightly come to the conclusion that the petitioner had never complied with the provision of Section 17 of Act, 1887. The Court had also taken the view that, in case it was treated to be compliance, the same was not full compliance as the amount so required had not been deposited. In view of the above, the bench dismissed the petition. 

The case title was Sanjay Mishra @ Ashu v. Magan Pandey And Another. The counsel for the petitioner was Sri Sunil Kumar Srivastava and the counsel for the respondent was Sri Ramesh Chandra Agrahari.

Case: Sanjay Mishra @ Ashu v. Magan Pandey & Anr.

Counsel for Applicant: Adv. Sunil Kumar Srivastava

Counsel for Opposite Party: Adv. Ramesh Chandra Agrahari

Order Date: 05.04.2023 

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