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American Furnishing House and anr. Vs. Udai Ram Bhurgi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberC.M. No. 834-D of 1965 in C.R. No. 380-D of 1959
Judge
Reported inAIR1966P& H364
ActsProvincial Small Cause Courts Act, 1887 - Sections 17(1) and 25
AppellantAmerican Furnishing House and anr.
RespondentUdai Ram Bhurgi
Appellant Advocate G. Srivastava, Adv.
Respondent Advocate Roshan Lal Sambhar, Adv.
Excerpt:
.....a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. .....(hereinafter referred to as the act), applies to an application filed for setting aside an ex parte decree made by the high court in a revision petition under section 25 of the act, arises for consideration 'in this case. it has arisen in the following circumstances :2. messrs american furnishing house and hari das, plaintiffs filed a suit for recovery of rs. 922-8-3 against udai ram bhurji in the court of small causes, delhi, the suit was contested by the defendant and was dismissed by the additional judge small causes court, delhi, on 11th april 1959. the plaintiffs thereupon filed a revision-petition under section 25 of the act to challenge the decision of the additional judge, small cause court. the revision of the petitioner came up for hearing before my lord the chief justice.....
Judgment:
ORDER

H.R. Khanna, J.

1. The question as to whether the proviso to Sub-section (1) of Section 17 of the Provincial Small Cause Courts Act (IX of 1887) (hereinafter referred to as the Act), applies to an application filed for setting aside an ex parte decree made by the High Court in a revision petition under Section 25 of the Act, arises for consideration 'in this case. It has arisen in the following circumstances :

2. Messrs American Furnishing House and Hari Das, plaintiffs filed a suit for recovery of Rs. 922-8-3 against Udai Ram Bhurji in the Court of Small Causes, Delhi, The suit was contested by the defendant and was dismissed by the Additional Judge Small Causes Court, Delhi, on 11th April 1959. The plaintiffs thereupon filed a revision-petition under Section 25 of the Act to challenge the decision of the Additional Judge, Small Cause Court. The revision of the petitioner came up for hearing before my Lord the Chief Justice on 26th February 1965. At the time of the hearing the plaintiffs were represented by Mr. G. L. Srivastava but no one appeared on behalf of Udai Ram Bhurji defendant. The learned Chief Justice accepted the revision-petition and granted a decree for recovery of Rs. 922-8-3 with costs in favour of the plaintiffs against the defendant.

3. The same day application under Order 9, Rule 13 of the Code of Civil Procedure was filed on behalf of the defendant. It was stated that the defendant attended with his counsel at about 10.45 a.m. and learnt that the case had been heard ex parte. According to the defendant, his absence at the hearing of the revision-petition was due to misunderstanding as he thought that the revision-petition would not come up for hearing before 10.45 a.m. as there were six motion cases and six regular cases above the revision-petition on the cause list of that day. Prayer was, accordingly, made for setting aside, the ex parte decree and the hearing of the revision-petition on merits in the presence of the defendant.

4. The application was supported by the affidavit of the defendant. The allegations made in the affidavit have not been controverted and I see no sufficient ground to disbelieve the same. In the circumstances, I am of the view that it is a fit case in which the ex parte decree should be set aside and the case be heard on merits in the presence of the defendant.

5 Mr. Srivastava on behalf of the plaintiffs has, however, raised an objection that the ex parte decree cannot be set aside unless the defendant deposits the decretal amount or in case the Court so directs furnishes security for the due performance of the decree as contemplated by the proviso to Sub-section (1) of Section 17 of the Act. The section reads as under:

'17. (1). The procedure prescribed in the Code of Civil Procedure, 1908, shall, save in so far as is otherwise provided by that Code or by this Act be the procedure followed in a court of Small Cause in all suits cognizable by it and in all proceedings arising out of such suits:

Provided that an applicant for an order to set aside a decree 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.

2. Where a person has become liable as surety under the proviso to Sub-section (1), the security may be realized in manner provided by S. 145 of the Code of Civil Procedure, 1908.'

Section 17 finds a place in Chapter IV of the Act which deals with practice and procedure. Perusal of Section 17 reproduced above goes to show that it lays down the procedure to be followed in a Court of Small Causes in all suits cognizable by it. There is nothing in the section to indicate that the procedure laid down in it about the deposit of the decretal amount or furnishing: of security mentioned in the proviso to. Sub-section (1) of Section 17 would also apply in case wherein after a suit has been dismissed by the Court of Small Causes, an ex parte decree is made by the High Court in a revision-petition under Section 25 of the Act, and an application is thereafter made to set aside the aforesaid ex parte decree. The proviso to Sub-section (1) of Section 17 of the Act engrafts an exception to the general procedure prescribed by the Code of Civil Procedure which is to apply when an application is made to set aside an ex parte decree, and as its provisions place a restriction on the powers of the Court in setting aside an ex parte decree even on sufficient cause having been shown therefor, I am of the view that it would be a sound rule of construction to hold that a case would not fall within the ambit of the proviso unless it is strictly covered by the language used therein. In the absence of anything in Section 17 to indicate that the provisions of the proviso to Sub-section (1) would have to be complied with not only when an application is made to set aside an ex parte decree to a Court of Small Causes, but also when an application is made to the High Court to set aside the ex parte decree granted by the High Court in a revision-petition under Section 25 of the Act, the proviso cannot be held to be applicable to the latter contingency. I would, therefore, hold that it is not essential for the defendant to deposit the decretal amount or to furnish the security in accordance with the proviso to Sub-section (1) of Section 17 of the Act before the ex parte decree is set aside.

6. The ex parte decree is, accordingly, set aside. It is further directed that the main revision petition should be set down for hearing at an early date.


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