1. The corresponding provision in the earlier Act XI of 1865 was enacted as a proviso to Section 21, which, after enacting that all decrees and orders of the Court should be final and making provision for setting aside ex parte decrees and also for granting new trials in other cases, expressly provided that no such new trial should be granted to a defendant 'unless he shall with his notice of application deposit in Court the amount' etc. Under this section there was clearly no jurisdiction to grant a new trial unless the proviso had been complied with in terms. Under that Act the procedure in these Courts was governed by rules made by the High Court under Section 46, but by Section 5 of the Code of Civil Procedure of 1877 the sections of the Code set out in the second schedule were applied to Small Cause Courts, so far as applicable. The sections so applied included the sections dealing with applications to set aside ex parte decrees and applications for review, and it was therefore only natural that the proviso now in question should appear in the present act as a proviso to Section 17 which again expressly provided that Small Cause Courts should follow the procedure prescribed in the chapters and sections of the Code of Civil Procedure specified in the second schedule. This re-arrangement necessitated some alteration in the language of the proviso, but that alternation in my opinion affords no ground for attributing to the Legislature an intention to modify the clearly mandatory nature of the earlier enactment, more especially as the new proviso is expressed in terms which are prima facie mandatory and have been so construed by the other High Courts. There are no doubt some English decisions in which the Courts have found indications in the particular enactments that provisions in form mandatory were only intended to be directory, but having regard to the history of the section there is in my opinion no room for any such conclusion here. In Ramasami v. Kurisu I.L.R. (1890) Mad. 178 Parker, J. no doubt stated that he was disposed to hold that Section 17 was merely directory and not mandatory and went on to observe:-'The Court did require the costs to be deposited before the review was heard, and this, I think, is the intention of the section.'
2. With all respect this appears to me to be importing into the section a new mandatory provision not to be found there. It does not appear from the report in that case whether the time prescribed in- the Limitation Act for making an application under Section 17 had expired when the costs were deposited. In Jeun Muchi v. Budhiram Muchi I.L.R. (1904) Cal. 339 where the application was made without making a deposit or giving security, it was held by Brett and Mookerjee, JJ., that, if the requirements of the section were complied with within the period prescribed for such applications in the Limitation Act, it might be treated as sufficient as no objection could have been taken if a fresh application had been presented when security was deposited. I think that this interpretation of the requirements of the section may well be followed, having regard to the practice which has prevailed in this Presidency, and would answer accordingly that the provision in question is mandatory, but is sufficiently complied with by satisfying the requirements of the section before the time prescribed for such applications in the Limitation Act has elapsed.
3. I entirely agree and add only that the interpretation we are adopting is consistent with the object of the Provincial Small Cause Courts Act, the provision of a simple fixed procedure for the cheap and expeditious disposal of petty claims.
Seshagiri Aiyar, J.
4. After the very full discussion which this case has received, I am confirmed in the view I took in Akula Achiah v. Lakshmi Narasimham : (1919)37MLJ433 that there is no necessity for bringing our decision into line with the decisions of the other High Courts, except with I.L.R. 32 Cal. 339 .
5. On the question whether the language of Section 17 of the Provincial Small Cause Courts Act is only directory, there can be difference of opinion. The position is this. Before the enactment of Act IX of 1887, the procedure for the trial of Small Cause Suits and the procedure for the trial of regular suits were regulated by distinct legislative enactments. By the Madras Civil Courts Act III of 1873, Section 28, power was conferred upon the Local Government to invest District Munsifs and Subordinate Judges with Small Cause Court jurisdiction in regard to suits of a particular description. My impression is, that until the enactment of this provision, there were separate Small Cause Courts in defined centres, and the regular tribunals of the presidency were not invested with small cause powers. Then came the Civil Procedure Code of 1877. It was intended to regulate the procedure not only in the regular Courts but also in the Small Cause Courts. The Civil Procedure Code of 1882 recognised this principle, and also provided for the repeal of some of the provisions of the Small Cause Courts Act of 1865. When the present Small Cause Courts Act was re-enacted, provisions were introduced into it which while confirming the right of a small cause suitor to have his case tried according to the procedure prescribed in the Civil Procedure Code, imposed limitations upon the exercise of some of the powers. Section 17 is an instance of this kind. In granting applications for setting aside ex parte decrees, the Small Cause Courts Act, Section 17, imposes a limitation upon the right of the suitor. Whereas, under the ordinary law, what the Courts have t8 be satisfied is that the party has not been duly served and that he had no opportunity of defending the suit, under the Small Cause Courts Act, in addition to satisfying these requirements. The defendant is required to deposit the amount of the decree. Therefore Section 17 should be read not as conferring a new jurisdiction subject to certain conditions, but, as limiting the exercise of jurisdiction by imposing conditions. This aspect of the history of legislation is essential for finding out whether Section 17 is directory or mandatory. Mr. Krishnaswamy Ayyar referred to Section 46 of the Small Cause Courts Act of 1865 and drew our attention to the fact that the language in the present Small Cause Courts Act is materially different. I think there is force in this contention. The language of Section 17 suggests ex facie that the deposit of the decree amount should precede the application for setting aside the ex parte decree; but there are no words in the section that, if the deposit is not made, the application should not be received. That seems to be one of the criteria for construing a statutory provision to be mandatory; I do not say that that is the sole criterion. This view gathers strength from the decision of the Judicial Committee to which Mr. Krishnaswami Ayyar drew our attention, namely, Burjore and Bhawani Pershad v. Bhagana I.L.R.(1883) Cal. 557. Their Lordships accepted the view taken In the matter of the petitions of Soorj Mukhi Koer I.L.R (1877)Cal. 272 that the absence of a provision for the dismissal of a suit or application for failure to comply with a condition is a circumstance tending to show that the provision is permissive and not mandatory.
6. Even more significant is the decision of the Judicial Committee under the Pensions Act in Mahammad Azmat Ali Khan v. Lalli Begum I.L.R. (1881) Cal. 422.
7. In that Act, Sections 4 and 6 read together make the institution of a suit in the Civil Courts dependent upon the production of a certificate from the Collector; and yet the Judicial Committee held that the production of a certificate during the course of the trial would be sufficient, thereby indicating that the sections are only directory. This view has been followed in Madras and other High Courts. See Bepin v. Abdul 24 Cal L.J. 446 Ganpat Rao v. Anant Rao I.L.R (1905) All. 104 and Ganpat Rao v. Anant Rao I.L.R. (1909) All. 148.
8. A third class of cases was referred to by me in my judgment in Akula Achiah v. Lakshmi Narasimham : (1919)37MLJ433 . In Ramayyangar v. Krishnayyangar I.L.R. (1886) Mad. 185 and Srinivasa Chariar v. Raghava Chariar 7 M.L.J. 281 it was held that Section 92 of the Civil Procedure Code which on a plain reading of it, indicates that the sanction of the Collector or the Advocate-General is a condition precedent to the institution of a suit, was satisfied by production of the sanction during the the course of the suit. I cannot say that the language of Section 17 of the Small Cause Courts Act is more imperative than Sections 4 and 6 of the Pensions Act, or Section 92 of the Code of Civil Procedure. Therefore the principal which underlies the decisions in these latter acts are equally applicable to the construction of Section 17 of the Small Cause Courts Act.
9. In Maxwell on the interpretation of Statutes, it is stated in one place that the conditions relating to the giving of recognizances or to the trials in suits should ordinarily be regarded as mandatory. But a reference to the decision in Rendall v. Blair (1890) L.R. 45 Ch. D. 139 will show that this statement is subject to many exceptions. In that case, the question was that whether if the consent of the Charity Commissioners was not obtained prior to the institution of an action, the action failed. Justice Kay, in the first Court held that it was a fatal objection. The learned Judge says, 'Another objection is this : if I allow the action to stand over in order that leave may be obtained the writ, which was issued more than a year ago, must be treated as a writ issued non protune and amendment must be allowed to the effect that the action was commenced after that leave obtained. I think that would be wrong. It would, I think, be entirely against the object and purpose of this section to allow the action to stand over for leave to be obtained' In Appeal, all the Lord Justices agreed that time should be given for obtaining the consent. Lord Justice Bowen said 'whether, supposing the consent of the Commissioner was necessary, it would be right to dismiss the action altogether.... It does not seem to me that the proper course, if an action appears to the learned Judge at the hearing to be an action which falls within Section 17, would be to dismiss it altogether; on the contrary, I think you ought to allow it to stand over to see if the consent of the commissioners can be obtained.' Then the learned Judge examines the language of the statute which is in these terms: 'Before any suit, petition, or other proceeding for obtaining any relief etc., relating to any charity, shall be commenced, presented or taken, there shall be transmitted notice in writing to the Board... and the said Board, if upon a consideration of the circumstances, they think fit, may, be an order or certificate direct any suit, petition or proceeding be next presented etc... and save as herein otherwise provided no suit, petition or other proceeding shall be entertained or proceeded with by the Court except upon and in conformity with the order or certificate of the said Board.' On this language Bowen Lord Justice says, 'This section is not framed in the way in which sections are framed when it is intended that some preliminary steps should be taken before the action is maintainable at all. On the contrary, both from the way in which it is framed, from the omission of the usual words, and also from the presence of words which seem to me to indicate that the absence of the consent of the Commissioners is only a bar to the Courts dealing with the action, and not a bar to the original institution of the suit.'' This decision in my opinion, which was concurred in on this point by Lord Justices Fry and Cotton, furnishes a clue for the construction of the section we are dealing with. I am not therefore prepared to say that the section is mandatory.
10. However that may be, in Jeun Muchi v. Bhudhiram Muchi I.L.R. (1904) Cal. 339 it is laid down that even though the original application may not be accompanied by a deposit once the application is on record, a deposit subsequently received within the time limited by law, would validate the application. This seems to be a very salutary rule. The later deposit would attract to itself the earlier application, and the application itself may be regarded as having been made on the date of the deposit. While this view would still make it permissible to the suitor to come into Court with an application unaccompanied by a deposit, it would also compel him to pay the money within the time limited by law. As against this view, there is the answer suggested by, Mr. Krishnaswami Ayyar that, whenever a deposit is made before the conclusion of the trial, it should date back to the date of the original application. In support of this view, there is the analogy of the practice in this and the other Courts by which deficient Court fees paid subsequent to the date of filing of the appeal and the filing of necessary papers which did not accompany the memorandum of appeal have been regarded as enabling the party to claim that the additional payment and the later production of documents should date back to the presentation of the appeal. In such cases the office fixes a time within which the deficiency or the omission should be set right. If this is done, the delay is excused in the Admission Court.
11. My answer to the question is that the provision of Section 17 of the Small Cause Courts Act will be complied with, if the deposit required by that section is made within the period of limitation, although it did not accompany the application for setting aside the ex parte decree.