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SamsuddIn Mia Vs. Munsi Adal Alim and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 3395 of 1974
Judge
Reported inAIR1976Cal52
ActsProvincial Small Cause Courts Act, 1887 - Sections 7, 17(1) and 25; ;Code of Civil Procedure (CPC) , 1908 - Section 115 - Order 9, Rule 13
AppellantSamsuddIn Mia
RespondentMunsi Adal Alim and anr.
Appellant AdvocateMd. Sadeque Hossen, Adv.
Respondent AdvocateMukul Gopal Mukherjee, Adv.
Cases ReferredRamunni v. Govindan
Excerpt:
- .....under order 9, rule 13 of the code of civil procedure filed by him for setting aside an ex parte decree passed against him.2. the admitted facts relevant for this application may be stated in short. an s. c. c. suit was filed by the opposite party-plaintiffs abdul alim and sk. ziauddin against the present petitioner. samsuddin mia for realisation of arrears of rent and the defendant appeared to contest and filed written statement challenging the claim of the plaintiffs. on the date fixed for hearing, as the defendant was not present, an ex parte decree was passed to the tune of rs. 608.88 np. including costs of the suit. the defendant, thereafter, filed a petition under order 9, rule 13 of the code of civil procedure for setting aside the ex parte decree alleging that he had.....
Judgment:
ORDER

R. Bhattacharya, J.

1. This revisional application has been filed by the defendant-opposite party against the order of a Subordinate Judge at Birbhum in the Small Cause Court jurisdiction dismissing an application under Order 9, Rule 13 of the Code of Civil Procedure filed by him for setting aside an ex parte decree passed against him.

2. The admitted facts relevant for this application may be stated in short. An S. C. C. Suit was filed by the opposite party-plaintiffs Abdul Alim and Sk. Ziauddin against the present petitioner. Samsuddin Mia for realisation of arrears of rent and the defendant appeared to contest and filed written statement challenging the claim of the plaintiffs. On the date fixed for hearing, as the defendant was not present, an ex parte decree was passed to the tune of Rs. 608.88 NP. including costs of the suit. The defendant, thereafter, filed a petition under Order 9, Rule 13 of the Code of Civil procedure for setting aside the ex parte decree alleging that he had sufficient reasons for non-appearance on the date of hearing and along with that application, he filed a receipt granted by the local Registration office showing that he had executed a security bond in favour of the Court of the Subordinate Judge to the extent of Rs. 608.88 NP. relating to some properties registered on the very day when the said application was filed. Besides it was stated in the petition under Order 9, Rule 13 that as a security for payment of the decretal dues the petitioner had executed and registered, a security bond in favour of the Court as would be evidenced by the receipt filed. It was prayed in the petition that in view oi the statements made in the petition, the S. C. C. Suit might be restored by setting aside the ex partp decree. The application was filed on 30-3-1974. On that very day the application was registered as Miscellaneous Case No. 17 of 1974 and the petitioner was directed to take steps for service upon the opposite party by 10-4-1974. On 10-4-1974 the petitioner filed requisites and there was a direction for issue of the notices upon the opposite parties fixing 10-5-1974 for return and order. The opposite parties appeared and filed objection and the opposite parties raised objection that the application was not maintainable and should be rejected on the ground that the proviso to Sub-section (1) of Section 17 of the Provincial Small Cause Courts Act was not complied with. The contention of the opposite party was that as the defendant did not obtain an order from the Court as to the nature of the security bond to be executed by him upon a previous application in the absence of any deposit of cash money, the Court had no right to register the case and proceed with the application. The court below heard the learned Advocates of both the parties and without going into the merits of the case on the question of law, has held that in the absence of any deposit of decretal amount and unless permission of the Court is obtained to furnish security, the defendant cannot file an application under Order 9, Rule 13, C. P. Code and that such application even if filed or registered, would be invalid. It appears that the learned Subordinate Judge acting within the jurisdiction of the Small Cause Court was of the view that the Court had no power to entertain an application for setting aside the decree unless order is given for furnishing security and such security is furnished by the party as would be accepted by the Court. As in the present case the defendant did not file an application for permission for furnishing security and did not file any security with previous approval of the Court, the defendant was not entitled to get any relief.

3. I have heard Mr. Hossen, the learned Advocate for the petitioner and Mr. Mukherjee, the learned Advocate appearing on behalf of the opposite parties. The main question before me is whether there was substantial compliance of the proviso to Section 17(1) of the Provincial Small Cause Courts Act by the defendant when an application was filed for setting aside an ex parte decree. Mr. Mukherjee's contention is that according to the proviso to Sub-section (1) of Section 17 of the Provincial Small Cause Courts Act, the first requisite for the defendant for filing an application for setting aside the ex parte decree is to deposit the decretal amount in cash along with the application or the defendant may, without depositing cash, file a petition for setting aside the ex parte decree, but before that he is to file an application in writing for obtaining permission to file security to the extent of the decretal amount and furnish such security for the safety of the decretal dues as would be directed by the Court. Upon furnishing such security earlier or at best with the filing of such security, the defendant could be entitled to file an application for setting aside the ex parte decree.

4. Before I proceed to consider the question of law raised. I quote the relevant portion of Section 17(1) of the Provincial Small Cause Courts Act:--

'17. Application of the Code of Civil Procedure-

(1) The procedure prescribed in the Code of Civil Procedure. 1908 (5 of 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 Causes 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 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.'

The proviso to Sub-section (1) of Section 17 says that in case a defendant wants to file any application for setting aside an ex parte decree, it is for him either to deposit the amount under the ex parte decree at the time of presentation of the application or at the time of presentation of his application, he is to give such security for the performance of the decree or compliance with the judgment as would be directed by the Court on previous application in this respect. There is no doubt in my view that it is mandatory on the part of the judgment-debtor while filing an application for setting aside the ex parte decree to deposit the decretal amount in cash if the circumstances so permit or the defendant may choose to furnish security for the compliance of the decree and judgment after obtaining permission therefor from the Court, upon an application to be made before the filing of the petition for setting aside the ex parte decree. According to the proviso it is no doubt that the defendant is to deposit the amount as mentioned or furnish the security as stated at the time when the application is presented in Court. Mr. Mukherjee's contention is that unless there is an application in writing previous to the filing of the application for setting aside the decree, for permission to furnish security and unless such permission is granted by the Court, the defendant has no right to furnish security according to his wish and file the application and if the defendant does so the Court is bound to reject that application. In construing a provision contained in the enactment of the country, the Courts should read the law with open and liberal mind and reasonably interpret the same so that it may be practically applied to cases. After all the law is not a stony mould or a rigid formula that the facts which do not fit in with the mould or do not come under the formula, should be rejected. The letters of the law cannot be strictly applied, but the sense carried by the letters and which appears to be reasonable for the sense it carries must be accepted. We are to see whether there has been substantial compliance with the law. Meaningless or unsubstantial technicalities should be ignored. In the proviso to Sub-section (1) of Section 17 as quoted above, it is stated that the defendant for furnishing security should comply with the direction in respect of such security as would be granted upon a previous application. In this proviso it has not been stated that such application should be in writing. The application may be in writing or verbal. The intention of the Legislature for the inclusion of the proviso is quite clear. It was meant for safeguarding the interest of the plaintiff who has already obtained an ex parte decree so that the decree or judgment may be complied with by the defendant in case the application for setting aside the ex parte decree fails. This safeguard is meant to prevent harassment and frivolous applications by the defendant, delay in the processes of the Court and any attempt to defeat the decree already passed.

5. In the present case there is no doubt that the application was filed within time and not on the last day of limitation. It is undisputed that along with the application under Order 9. Rule 13, C. P, Code, the defendant filed a registration receipt showing that before the filing of the application he had already executed a security bond in favour of the Court passing the decree covering the decretal amount. The petitioner also stated in the application that the registration receipt showing execution of the security bond was filed with it and prayed at the same time that the decree might be set aside. The order sheet of the Court shows that on the very day of presentation of the application, the Court registered the application as the Miscellaneous Case and the defendant was directed to file requisites, for service of notice upon the other side. Clearly, therefore, it was brought to the notice of the Court that a security bond was executed by the defendant to the extent of decretal dues and thereafter, the Court accepted the application for consideration. The said application was not rejected or not found non-maintainable for want of deposit of decretal money or sufficient and satisfactory security. In the present circumstances, therefore. I have no doubt that the Court accepted the application of the defendant and also the execution of the security bond as evidenced by the registration receipt attached to the application, may be tentatively. This acceptance was within the jurisdiction of the Court and not contrary to law. There is nothing indicated in Section 17 that the court shall not accept any application without any security being furnished by the defendant according to the order or specifications given by the Court previous to such presentation of the application. According to the proviso, the defendant is to deposit money or to furnish security but it is not for the court to reject mechanically any application as soon as it is presented without any security. There may be cases where application for furnishing security is filed before the presentation of an application for setting aside of an ex parte decree, but for some reason or other, no order is passed by the court on that application within, the period of limitation prescribed for representation of an application for setting aside the decree. It does not mean that the defendant shall not be entitled to file any such application unless there is the order this way or that upon an application for furnishing security in place of deposit of cash money. There may also be cases where application for setting aside the decree is filed along with the petition for allowing to furnish security to the extent of decretal dues but within the period of limitation no order is passed. It should be remembered that due to the latches or fault of the court no litigant should suffer and at the same time the court will see that there has been a substantial compliance with law by the litigant. Unimportant technicalities should not prevent the court from doing proper and substantial justice to the litigant. To give an instance of substantial compliance with Section 17(1) of the Provincial Small Cause Courts Act. I may refer to the decision in the case of P. Venkataratnam v. M. Agastheeswara Rao appearing in : AIR1964AP544 . In that case a draft bond was filed along with the petition for setting aside the ex parte decree of an S.C.C. Suit, The Court ordered for testing the bond. No bond previously approved by the Court was filed at the time of presentation of the petition for setting aside the decree, The High Court in the circumstances held that the Court below allowed the petitioner to furnish security and that Section 17(1) was sufficiently complied with. It may further be noted that in this case the view of this Court was that the application for furnishing security mentioned in Section 17(1) does not contemplate filing of written application. The application may be oral.

6. The petitioner before me. as I have already stated, filed the registration receipt showing furnishing of security in favour of the court. The application was registered. No objection was raised by the Court. .But, on the other hand notice was served upon the opposite parties. It is quite clear that the defendant acted with all his bona fides and the Court accepted the security offered to the court. The defendant was made to believe that his application was accepted. Had there been summary rejection of the application for restoration of the suit for want of money deposit or security, then certainly on the very next day the defendant could have taken necessary steps to deposit cash money if necessary. But that opportunity was lost to him as the application was accepted by the Court. From the facts and circumstances. I have no manner of doubt that there was substantial compliance with Section 17(1) of the Provincial Small Cause Courts Act by the defendant and that after registering the Miscellaneous Case, on acceptance of the security already offered, the court acted illegally in rejecting the application as it did by holding that it acted wrongly in registering the miscellaneous case. The Court had jurisdiction and judicial discretion to accept tentatively a security furnished by the applicant without obtaining approval from the Court subject, of course, to the objection of the opposite party and also to his furnishing such other security as would be directed by the Court later on to its satisfaction. The Court could, after the objection filed by the opposite parties, consider whether the security furnished was sufficient or whether it would direct the defendant to furnish other suitable securities to its satisfaction. If the security already furnished was found sufficient, the court ought to have gone into the merits to see whether the application for setting aside the ex parte decree was to succeed or fail. In case the defendant was to furnish other securities and if in spite of sufficient opportunity to the defendant for furnishing such security, the order was not complied with, then the court could have been justified to reject the application under Order 9, Rule 13 of the C. P. Code. In my opinion, the court below not only acted illegally, without jurisdiction and with material irregularity but also caused great injustice to the defendant.

7. Mr. Mukherjee has further contended that the present application under Section 115 of the C.P. Code against the order passed by the Small Cause Court below rejecting the application under Order 9, Rule 13 should be rejected as not maintainable in view of Section 25 of the Small Cause Courts Act read with Section 7 of the C. P. Code according to which Section 115 of the Code does not extend to courts constituted under the Provincial Small Cause Courts Act, 1887. The present revisional application has been directed against the order of the S, C. Court and as such no revisional application lie under Section 115 of the C. P. Code. But, this will not prevent this Court from dealing with, the present revisional application which can be converted to one under Section 25 of the Provincial Small Cause Courts Act and I treat the same as such. The High Court can suo motu consider the validity or legality of the order of the trial court under Section 25 of the Provincial Small Cause Courts Act even in the absence of any application of a party to the litigation. In this connexion reference may be made to the case of Ramunni v. Govindan reported in : AIR1959Ker329 . The second objection raised by Mr. Mukherjee also fails.

8. In the result, the revisional application succeeds and the order complained against is hereby set aside. The Miscellaneous Case No. 17 of 1974 be sent back to the court below to be disposed of and dealt with according to law and as indicated above. The Rule is hereby made absolute. I pass no order as to costs in the facts and circumstances.


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