ORDER
1. An ex parte decree for ejectment came to be passed against the petitioner-tenant on 14-3-84 by the trial Court. On 3-7-84 the petitioner filed an application under 0.9, R. 13, C.P.C. for setting aside the ex parte decree dated 14-3-84. The application of the petitioner for setting aside the ex parte decree has been rejected by the Court below. The petitioner challenges the said order through the medium of this writ petition.
2. It is averred by respondent No. 3 that the arrears of rent were claimed in the suit from 1-4-83 to 15-9-83 at the rate of Rs. 32/-per month. The property seems to have been purchased by the respondent No. 3 on 30-3-83 Total rent from the date it fell due to the date of institution of the application under 0.9, R. 13, C.P.C. comes to Rs.484/-. The petitioner is said to have deposited Rs. 271 / -only. The petitioner is said to have deposited Rs. 1,228/- under S. 30 of the U.P. Urban
Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter referred to as Act No. 13 of 1972. The said proceedings are pending between the erstwhile owner of the property and the petitioner. Respondent No. 3 is not party to those proceedings.
3. Respondent No. 3 supported the judgment of the Court below on the ground that the petitioner had deposited only Rs. 271 / – on account of decretal amount, out of Rs. 484/- which was outstanding against him up to 3-7-84 when the application under O.9, R. 13, C.P.C. was filed by him. The deposit is said to be not valid. Therefore, in terms of S. 17 of the Small Cause Courts Act, the Court below was perfectly right in dismissing the application of the petitioner for setting aside ex parte decree. It is further stated that any deposit made by the petitioner in different proceeding in the name of different persons cannot be said to be valid deposit by the petitioner so as to get the benefit of S. 17 of the Small Cause Courts Act. It is averred that rent was payable to respondent No. 3. Therefore, deposit could be made in his name after satisfying the conditions of S. 30 of the Act No. 13 of 1972. There was no refusal on the part of respondent No. 3 to accept the rent which was tendered to him. Therefore, S. 30 of Act No. 13 of 1972 could not come into play against respondent No. 3. That being so the theory of deposit set up by the petitioner is of no consequence because the petitioner has not deposited any amount in the name of respondent No. 3 and has not tendered any amount to him.
4. There have been some mis-calculations about the amount of arrears of rent by the Court below. Learned counsel for the parties agreed before me that the rent due was from 15-9-83 to 3-7-84 i.e. Rs. 308/- and the arrears up to 15-9-83 Rs. I76/-, in all Rs. 484/- only were due and payable to respondent No. 3 on account of rent. Admittedly against this amount Rs. 271 / – has been deposited. Balance amount has not been deposited in the name of respondent No. 3. If any amount is deposited by the petitioner that is not in the name of respondent No, 3 nor is that before the filing of the application for setting aside the ex parte decree.
5. Proviso to S. 17 of the Small Cause Courts Act reads as follows:–
“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 his 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.”
6. As stated above, the petitioner neither deposited the amount due from him under the decree nor give any security for the performance of the decree after obtaining permission from the Court. The proviso to S. 17, therefore, has not been complied with by the petitioner in this case.
7. The petitioner submitted that if at all there was any mistake in depositing the rent that was bona fide and the petitioner should not suffer for his bona fide mistake. It is urged that when the property was purchased the petitioner was not in know of the transfer of the property by its erstwhile owner in favour of the present landlord. That misled the petitioner and he deposited rent under S. 30 of the Act No. 13 of 1972 in different proceedings which were started between the petitioner and the erstwhile landlord.
8. The petitioner seems to have made a feeble attempt on 7-11 -84 to tender the rent by making an application. He had volunteered to deposit the rent on being informed if there was any amount due and in whose name it was to be deposited. This application will not cure the defect because deposit of the amount due from the petitioner under the decree was to be made at the time of presentation of the application under O.9, R.,13, C.P.C. No deposit was made either before presentation or at the time of presentation of the application under O. 9, R. 13, C.P.C. Consequently, the application filed by the petitioner on 7-11-84 would be of no value because it is not an application under the proviso to S. 17 of the Small Cause Courts Act. The petitioner was aware about the amount which was due
against him under the decree and he was also
aware that he has only made a valid deposit to
Rs. 271/- out of the amount determined by
the decree against him and he was all along
represented by his counsel. Therefore, it
cannot be said that the petitioner has made
any bona fide mistake. It is pertinent to
mention that the application for setting aside
the ex parte decree was made by the petitioner
against the present landlord, therefore, he
could not be heard to say that on the date of
presentation of the application he was not
aware as to who was the landlord or there was
transfer of ownership by the erstwhile land
lord in favour of the present landlord. There is
no compliance with the proviso to S. 17.
Deposit of part of the amount is not com
pliance of S. 17. Therefore, the application
under 0.9, R. 13, C.P.C. was filed without
depositing the amount due under the decree.
Such an application was correctly held as not
maintainable by the Court below.
9. I find no error in the impugned order and it is not a fit case in which this Court can interfere with under Art. 226 of the Constitution of India. The impugned order does not suffer from any infirmity. The petition as such is liable to be rejected.
10. For the reasons given in the foregoing paras of this judgment, the writ petition fails and is dismissed. However, there will be no order as to costs.
11. The interim order dated 3-10-88 and 21-7-89 shall stand vacated. Any amount deposited by the petitioner due from him to respondent No. 3 under the decree shall be payable to respondent No. 3 if he has not already withdrawn it.
12. Petition dismissed.