Binode Behari Saha Vs. Nitya Gopal Shaha, 33 DLR (AD) (1981) 130

Case No: Civil Appeal No. 41 of 1980

Judge: Ruhul Islam,

Court: Appellate Division ,,

Citation: 33 DLR (AD) (1981) 130

Case Year: 1981

Appellant: Binode Behari Saha

Respondent: Nitya Gopal Shaha

Subject: Procedural Law,

Delivery Date: 1980-7-15

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Kemaluddin Hossain, CJ.
F. K. M. A.  Munim, J.
Ruhul Islam, J.  
Badrul Haider Chowdhury, J.
Shahabuddin Ahmed, J.
 
Binode Behari Saha
………….Appellant
Vs.
Nitya Gopal Shaha
………….Respondent
 
Judgment
July 15, 1980.
 
Provincial Small Cause Courts Act (IX of 1877)
Section 17(1) Proviso
Whether the application for setting aside the ex-parte decree passed by Small Causes Court filed within time but the security bond furnished beyond the period of limitation, it will be deemed as due compliance of the proviso to sub-section (1) of section 17 of the Provincial Small Causes Courts Act.
Yes, such an application for setting aside the ex-parte decree must be treated to have been validly presented.
 
Case Referred to-
Gedi Mal Dharma Das. AIR 1931 I ah. 332; V. M. Assan Md. I.L.R. 43 Md 597; Md. Fazil Ali (1894) 108 P. R. Rughu Nath Das (1910) 54 P. R; Mukandi Lal. (1919) 50. I.C. 917; Jogar Ahir (1891) Cal. 83: Sombabhai (1907) 9 Bom. L.R. 883; Tenu Muchii (1905) 32 Cal. 339.
 
Lawyers Involved:
Anil Chandra Sarkar, Advocate, Supreme Court, instructed by B.C. Panday, Advocate-on-Record-For the Appellant.
Ex-parte —Respondent.
 
Civil Appeal No. 41 of 1980.
(From the judgment and order 10-6-77 passed by the High Court in Civil Revision No. 396 of 1970).
 
JUDGMENT
 
Ruhul Islam, J.
 
This appeal by special leave arises from the judgment of the High Court dated June 10, 1977 in Civil Revision No. 396 of 1974.
 
2. A short question has been raised in this appeal for our consideration: whether the application for setting aside the ex parte decree passed by the Small Cause Court filed within time but the security bond furnished beyond the period of limitation, it will be deemed as due compliance of the proviso to sub-section (1) of section 17 of the Provincial Small Cause Court Act? Along with this another short question has been raised is, whe­ther the Small Cause Court has the power to grant time for filing security bond beyond the period of limitation for setting aside the exparte decree.
 
3. Facts in short are that the appellant instituted Small Cause Court Suit No. 5 of 1973 for ejectment of the respondent from the suit premises describing the respondent as an ordinary ejectable monthly tenant at a monthly rental of Tk. 40/-. The suit was instituted after determining the tenancy by serving a notice under section 106 of Transfer of Property Act. The respondent filed writt­en statement denying the claim of the appell­ant but he ultimately did not appear on the date of hearing of the suit on 12-9-73 when the suit was decreed ex parte. Thereafter, on 15-9-73 the respondent filed an application under Order IX, rule 13 read with section 151 of the Code of Civil Procedure for restoration of the suit on setting aside the exparte decree. He also filed a petition praying for time for furnishing required sec­urity bond. The learned S.C.C. Judge allowed time to the respondent to furnish the security bond by 25-9-73 and fixed 14-11-73 for return of the service of notice in the Miscellaneous Case. The respondent neither filed the security bond nor took any step in the matter and, as such, the learned S.C.C. Judge fixed 3-11-73 for order. The respondent having failed to take steps by the date fixed, the learned S.C.C. Judge fixed 24-11-73 for show-cause by the respondent as to why the Miscellaneous Case should not be rejected on account of his default to furnish the security bond. The respondent, however, filed the necessary security bond on 24-11-73. He also filed an application showing the cause of delay in furnishing the security bond, and along with it he filed an application under section 5 of the Limitation Act for condonation of delay. The appellant filed an application supported by an affidavit for rejection of the application of the respondent. The learned S.C.C Judge heard the Miscellaneous Case No. 524 of 1973 along with the application under section 5 of Limitation Act and rejected the said applica­tion and dismissed the Miscellaneous Case on 10-1-74. In revision at the instance of the respondent the learned Single Judge of the High Court by his judgment dated June 10, 1977 set aside order of the S.C.C. Judge and directed the trial Court to accept the secu­rity bond and to proceed with the Miscel­laneous Case according to law.
 
4. It has been argued by the learned Advocate appearing for the appellant that the requirement of furnishing security bond as provided in section 17(1) is mandatory and not directory, and that being so the learned Single Judge acted in excess of his jurisdic­tion in extending time for filing a security bond, and then accepting it beyond the time. The learned Advocate submitted that if the provision of section 17(1) is strictly complied with, the application for setting aside the ex-parte decree passed by the S.C.C. Judge cannot be extended.
 
5.  Section 17 (1) of the Small Cause Courts Act reads as under:—
 
"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 Causes Act in all suits cognisable by it and in all proceedings arising out of such suits:
Provided that an applicant for an order to set aside a decree passed exparte 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 judgement, 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.  Proviso to sub-section (1) of section 17 of the Small Cause Courts Act is couched in such a language that in the matter of its interpretation there has been some sharp controversy. In some decisions it has been held that the requirement of making deposit in the Court the amount due from the app­licant under the decree or in pursuance of the judgment, or give such security for the performance of the decree or compliance with the judgment, is mandatory. The Court has got no power to extend time to comply with the above noted requirement and the application must be rejected. The other view is that the requirement of the proviso is directory and the power to extend time is discretionary. In an appropriate case the Court is competent to extend time. The third view is that if deposit is made or security is furnished within the time pres­cribed by the law but before the application is rejected, it will be treated as 'substantial compliance of the requirement of section 17.
 
7. In the instant case the learned Single Judge has followed the decisions wherein the view has been taken that the require­ment of the proviso to sub-section (1) is directory and the Court’s power to extend time in an appropriate case is discretionary. The learned Judge mainly relied upon a Full Bench decision of the Lahore High Court in the case of Gedi Mal Dharam Das vs. Huna Mal Shedu Ram, AIR 1931 Lah. 332. The Full Bench has taken the view that the pro­visions as contained in proviso to sub-sec­tion (1) of section 17 are directory and the Court has the discretion to extend time within which the deposit is  to be  made or  security furnished, in taking  this view the learned Judges  followed the dissenting judgment of Sheshagiri  Aiyar, J in a  Full Bench case of the Madras High Court, V.M. Assan Moham­mad Sahib vs. M.E. Rahim Sahib, I.L.R. 43 Madras 597 (Full Bench) Sheshagiri, J. fol­lowing the view taken by a Division Bench of the Lahore High Court in Mohd. Fazil Ali vs. Karim Khan, (1894) 108 P.R. 1894 held that the provisions are directory. The deci­sion in Mohd. Fazil All vs. Karim Khan was followed by Reid, CJ. in Rughu Nath Das vs. Pana Lal, 1910 54 P.R. 1910 corresponding to 6 Indian Case 945; and Shadi Lal, J. in Mukandi Lal, vs. Pars Ram, (1919) 50 Indian Case 917.
 
8.  In the case in A.I.R. 1931 Lah. 332 facts in short are that an application was filed by the judgment-debtor for setting aside an ex parts decree which was not   accompanied either by a deposit of the decretal amount or security as required by the provi­so to sub-section (1) of section 17. The period of 30 days from the date of the decree expired on 29th November, 1919. On Dece­mber 2, 1919 the judgment-debtor applied to the Court for permission .to deposit the decretal amount. The Court permitted this to be done subject to objection by the decree-holder opposite party. The Court ultimately dismissed the application on accepting the objection raised by the decree-holder to the effect that the application was not maintain­able due to non-compliance of the provisions of proviso to sub-section (1). At the instance of the judgment-debtor the matter was taken to the Lahore High Court in Revision under section 115 of the Code Civil Proce­dure, and a Single Judge Bench ultimately referred the following question to the Full Bench:
 
"Whether the provisions of section 17 of Small Cause Courts Act that an ap­plicant for an order to set aside the ex parte decree, shall, at the time of presenting his application, either deposit in the Court the amount due from him under decree or give security to the satisfaction of the Court or the perfor­mance of the decree as the Court may direct are mandatory or merely direct­ory. In other words, whether Mohd. Fazil Ali vs. Karim Khan (1894) 108 P.R. 1894 was correctly decided".
 
The Full Bench reviewed practically all the available decisions of different High Courts of the sub-continent to see the nature of controversies with regard to interpretation of the proviso to sub-section (1) and the nature of the reasonings given in support of the different views. On examining a large number of cases it has been observed that the cases disclosed a serious divergence of judicial opi­nion on the point and the cases divide them­selves into three distinct groups:

(i) Those in which it has been held that the words "at the time of presenting the application" in the proviso to section 17 are directory and the Court has the discretion to extend time in appropriate cases;
(ii) those which decided that the words are mandatory, and that it is a con­dition precedent to the making of an application for setting aside the decree that the applicant should, at time of presenting his application, deposit in Court or tender the security for payment of the same; and
(iii) those which lay down that the words are directory to this extent that the deposit or security need not be made or tendered with the application, but that this can be done within the period of limitation but not beyond it.
 
9. The Full Bench observed that the first view held the field in the Punjab Courts from 1894 and has been accepted as correct ever since, the leading case being Mohd. Fazil Ali vs. Karim Khan wherein the judg­ment was given by a Division Bench. On the two expressions occurring in the proviso namely, "at the time of presenting the appli­cation" and as the Court may direct" the Full Bench expressed the view as under:
 
"It seems to me that the legislature clearly intended to lay down that it is for the Court, and not the applicant, to decide whether a cash deposit should be made or security furnished, and as the applicant cannot, at the time of presenting the application, know which of the two alternatives will be accept­able to the Court, the making of the deposit or the furnishing of security cannot possibly be held to be a condi­tion precedent to the making of the application".
 
The Full Bench also observed that literal interpretation of the proviso may lead to various other anomalies. For instance, it may, in some cases have the effect of puni­shing the applicant, for diligence in presen­ting the application earlier than he need have done under the law.
 
10. The second view was first enunciated by the Calcutta High Court in Jogir Ahir vs. Bishen Dayal, (1891) 18  Cal, 83 and this view was  followed by the Allahabad  High Court, the  Madras  High Court and  the Patna High Court. The Bombay High Court also by a majority judgment followed the view in (1907) 9 Bom.L.R. 883 Somavhai Premchand vs. Wadilat Premchand. The Calcutta High Court, however, modified its opinion a few years later and followed the third view in (1905) 32 Cal. 339—Jeun Muchi vs. Budhiram Muchi, corresponding, ro 1 Cal. Law Journal 143. This view has been, followed by the Calcutta High Court. This interpretation was also adopted in the majority judgment of a Full  Bench of the Bombay High Court in V.M. Assam Moham­mad vs. M.E. Rahim Sahib (1920) 43 Mad. 579 corresponding to 55 T.C. 977 (F.B.). Seshagiri Aiyyar, J. dissenting and agreeing with the reasonings in Md. Fazil Ali vs. Karim Khan. Allahabad High Court also followed the majority view in Suraj Prosad vs. Baldeo, A.I.R. 1928 All. 111 corresponding to 50 All. 254. Patna High Court also adopted the later Calcutta interpretation in (1920) 54 Indian Case 971. With regard  to the  third view, as indicated above, prevailing in some of the High Courts which recognizes that it is not possible to put a strict and literal inter­pretation on the words "at the time of pre­senting the application", and trying to solve the problem by striking a middle course, that the words are not mandatory but direc­tory in a limited sense, inasmuch as, the deposit must be made or security furnished within the period prescribed by Article 164 of the Limitation Act, the Full Bench of the Lahore High Court in A.I.R. 1931 Lab. 332 did not approve this view and observed that the words in question are either man­datory or directory, and cannot be directory in a limited sense. The Full Bench conclu­ded with the following statement:
 
"We are therefore driven to the con­clusion that the words at the time of presenting the application are not man­datory in the sense that the application for setting aside the decree is incompe­tent unless it is actually accompanied by a cash deposit or security".
 
11. The original proviso to sub-section (1) of section 17 contained the words "secu­rity to the satisfaction of the Court for the performance of the decree or compliance with the judgment as the Court may direct". The words were replaced by the words "such security for the performance of the decree or compliance with the judgment as the Court may on a pervious application made by him in this behalf, have directed", by the Provincial Small Cause Courts (Amendments) Act IX of 1935. On careful examination of the language of the proviso it appears that the applicant is required to comply with the requirements by adopting either of the two courses. "He may deposit the decretal amount or furnish the requisite, security bond along with the application: or seek Court's per­mission by filing a separate application for necessary direction and comply with the same. If the applicant chooses to seek Court's direc­tion in this behalf, he is required to file an application for direction previous to the application for setting aside the exparte decree. The words "on a previous application made" give the impression that the application seek­ing Court's direction is required to be filed before filing the application for setting aside the exparte decree. This is not the correct position. Otherwise the applicant will have to file an application much ahead of the expiry of the period of limitation of thirty days so that the Court may pass the necessary order. In doing so the applicant will be deprived of the benefit of the full period of limitation. I fully endorse the view taken by the Full Bench of the La­hore High Court in Gedi Mai vs. Huna Mal, 1931 Lahore 332, that literal interpreta­tion of the words "previous application' may lead to various other anomalies. In that case the applicant will have to come to Court well within the period of limitation so that the direction given by the Court may be com­plied with before expiry of the limitation. The Full Bench has rightly observed that this in some cases may have the effect of punishing the applicant. Legislature certainly did not intend to create such anomaly. In my opinion if the application for seeking Court's direction is filed along with the application for setting aside the exparte decree and the Court passes necessary orders on the application directing the applicant either to deposit the decretal money or furnish security bond, and the applicant complies with direction within the time given by the Court, this will be sufficient compliance of the requirement of the proviso. Even if the application for setting aside the exparte decree is filed on the last day of limitation along with an application for see king Court's direction, and the Court passes its order thereon directing the applicant either to deposit the decretal amount for furnish security bond, keeping pending the appli­cation for setting aside the exparte decree, it will be sufficient compliance of the require­ment as provided in the proviso. Of course the direction must be complied with within the time given by the court. All that the pro­viso requires is that the application for setting aside the exparte decree roust be filed within the period of limitation on complying with the requirements thereof or obtain a direction from the Court by filing a separate applica­tion for compliance of the requirements. It would be absolutely unreasonable to say that the Court's power to give direction is circum­scribed by the period of limitation, that is to say, the Court's power to extend time must be exercised within the period of limitation, and the Courts becomes power­less after the period of limitation. I find it difficult to agree-with the view taken in some cases that the Court has power to give direc­tion if the application is filed with the period of limitation giving sufficient time to the. Court to give its direction; and on compliance of the direction within the period of limitation the application for setting aside the exparte decree will be treated as validly presented. The period of limitation is meant for filing the application for setting aside the exparte decree and not for giving the direction by the Court and for compliance of the direction given by the Court. In my opinion, if an application for setting aside exparte decree is filed within the time along with an application for neces­sary direction of the Court and the Court gives the necessary direction in this behalf, which even if complied with beyond the period of limitation, the application for setting aside the exparte decree must be treated to have been validly presented as required under the proviso. Strict literal interpretation of the words "on a previous application made by him in this behalf" may cause hardship to a person aggrieved by the exparte decree. In taking this view I do not mean to say that the applicant gets indefinite period for complying with the requirements of the proviso. He can­not get time beyond the date fixed by the Court. In case of his default the application stands liable to be rejected.
 
12. The learned Single Judge has referred to a decision of a Single Judge of the Dacca High Court in the case of Misa Pramanik vs. Khatu Sonar, 54 CWN (2 D.R.) 67. In this case an application for setting aside the exparte decree was filed on the last date of limitation without making the deposit of the amount due under the decree, or fur­nishing security for the same as required under section 17. The Court, however, direc­ted the applicant to make the deposit by the 19th August, 1948. On the 19th August however, the applicant made an application for permission to furnish security instead of making cash deposit, and obtained permis­sion for the same; and on the 31st August 1948, security was furnished. Objection was taken that the application for setting aside the exparte decree was incompetent, in view of non-compliance of section 17. The S.C.C. Judge overruled this objection. In revision the learned Single Judge of the Dacca High Court set aside the order of the S.C.C. Judge and rejected the application as not validly presented. In taking this view the learned Judge relied upon a decision of the Calcutta High Court in the case of Abdul Sheikh vs. Mohammad Ayub, 24 CWN 380. In the Calcutta case an application for review of judgment of a Small Cause Court suit was made on the last day of the prescribed period of limitation but without deposit of the amount of the costs or security for the same as required under section 17. On the following day the Court allowed the applicant time for making the deposit which was eventually made and the application for rev­iew was granted. In revision a Division Bench of the Calcutta High Court set aside the order on taking the view that the application was not competent due to non compliance of the provisions of section 17. This decision being of the time previous to the amendment of the proviso in 1935 cannot be treated as an authority on the question. In the case before the Dacca High Court direction was given within the time for depositing the decretal amount, but the applicant failed to comply with the direction and sought per­mission to furnish security instead of making the cash deposit, which was allowed and the applicant complied with the direction. In the fact and circumstances of the case since the, direction was obtained before expiry of the period of limitation, which although altered subsequently by the Court, on compliance of the direction the application for setting aside the exparte decree became competent. Therefore, the view taken by the learned S.C.C. Judge cannot be taken as a correct one. In the instant case, id my opinion the learned Single Judge has given correct inter­pretation to the proviso to sub-section (1) of section 17 of the Provincial Small Cause Courts Act.
 
In the result, the appeal is dismissed without any order as to costs.
 
Ed.