SC held that Order 9 Rule 13 cannot be automatically grated and would be allowed only when sufficient cause is made out to set aside the ex-parte decree.
In the recent case of Subodh Kumar v. Shamim Ahmed, a tenant has filed an application is to set aside an ex-parte decree against him which was dismissed by the trial court on the ground that no deposit was made by the tenant as provided under Section 17 of the Provincial Small Cause Courts Act, 1887. The High Court directed the trial court to reconsider the application under the Order 9 Rule 13 of the Civil Procedural Code as well as Section 5 of the Limitation Act in accordance with law.
An appeal was filed against the order of the High Court in which the court observed that the in the application filed by the tenant under Order 9 Rule 13 of CPC, there was no compliance of Section 17 of 1887 Act while the application was not competent. Further, the respondent tenant has not deposited the complete amount due on 25.08.1998 under Section 30(2) of Act No.13 of 1972 and lastly, the court observed that the deposit of rent under Section 30(2) of the Act of 1972 in the present matter will not be treated to be deposit for the purposes of proviso under Section 17 of the Act, 1887.
The court further stated that even in the case where there is a compliance of proviso to Section 17, the application filed under Order 9 Rule 13 to set aside the decree passed exparte or for review of the judgment cannot be automatically granted. The compliance of proviso to Section 17 is a Precondition for maintainability of application under Order 9 Rule 13. Application under Order 9 Rule 13 can be allowed only when sufficient cause is made out to set aside the exparte decree. The present is a case where no sufficient cause was made out to set aside the exparte decree.
Considering all the arguments, the court stated that the tenant does not have sufficient ground to allow the application under Order 9 Rule 13 and the High Court committed error in interfering with the order of the trial court.