Raees Ahmad Shah v. Tara Chand Kesarwani — 1983 DIGILAW 973 (ALL)

JUDGMENT S. C. Mathur, J. 1. THE short question arising for determination in this Civil Revision filed under section 25 of the Provincial Small Cause Courts Act, 1887 (Act for short) is whether the applicant had complied with the requirements of the proviso to Section 17 (1) of the Act so as to entitle him to have the ex-parte decree passed against him set aside and to have the suit restored to its original number. A few facts relevant for determining the question may be noticed. 2. THE applicant is defendant in a suit filed by the opposite party for recovery of arrears of rent and damages for use and occupation and for possession over the premises in dispute. THE suit was decreed ex-parte on 7-1-1981. On 16-2-1981 the applicant filed an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree and for restoring the suit to its original number. This was the last date of limitation for moving the application. On this very date the applicant also moved an application under Section 17 of the Act seeking Courts direction regarding furnishing of security in respect of the amount due under the decree. THE Court instead of giving direction regarding security on this date ordered issue of the notice to, the plaintiff-opposite party fixing 11-3-1981 for hearing. THE notice could not be served upon the opposite party and, therefore, the date of hearing was adjourned to 5-5-1981. On the adjourned date objection was filed by the opposite party to the furnishing of security by the applicant ; the case of the opposite party was that there was no occasion to furnish security and that the applicant must deposit the amount in cash. THE court agreed with the objection raised by the opposite party and directed the applicant to deposit the amount due under the decree in cash by 5-7-1981. 5-7-1981 being Sunday and the applicant deposited a sum of Rs. 8,400/- in cash on 8-7-1981. On 30-10-1981 when the application came up for final disposal it was pressed on behalf of opposite party that the applicant had failed to comply with the requirements of the aforementioned proviso within the prescribed time and, therefore, his application under Order 9 Rule 13 was liable to be rejected. This objection found favour with the Court below and accordingly it dismissed the application. This objection found favour with the Court below and accordingly it dismissed the application. Aggrieved by this decision, the defendant has approached this Court through the present revision. Learned counsel for the applicant has submitted that the applicant had complied with the requirements of the proviso when he made an application under Section 17 of the Act on 16-2-1981. According to him the Court should have given direction on this application within the prescribed period of limitation and when the Court failed to issue direction within the said period, the applicant was entitled to be relieved of the hardship which he thereby suffered and in the circumstance of the case the applicant should be deemed to have complied with the requirements of the proviso. 3. LEARNED counsel for the plaintiff-opposite party counters the arguments advanced on behalf of the applicant and submits that the requirements of the proviso are mandatory and the said requirements have to be complied with within the period of 30 days and the Court has no jurisdiction to extend the said period. According to the learned counsel the mere fact that the Court issued notice of the application to the applicant would not entitle the applicant to any benefit. The learned counsel argues that it was for the applicant himself to comply with the requirements of the proviso within the period and he can have no advantage of any delay on account of the notice of the application having been issued by the Court. 4. THE proviso which requires interpretation in this case reads as follows " 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 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." Under the above proviso an applicant has to deposit the amount due under the decree in cash or he may furnish security in respect of the said amount. If the amount due is deposited in cash no directions are required to be obtained from the Court. If the amount due is deposited in cash no directions are required to be obtained from the Court. But if instead of depositing the amount in cash the applicant wishes to give security, he has to obtain directions of the court and in that behalf he has to move an application. The amount has to be deposited at the time of presenting the application ; similarly the security also has to be furnished at the time of presenting the application. Where the application under Order 9 Rule 13 of the Code of Civil Procedure is filed earlier, but the amount is deposited later the application shall be deemed to have been filed on the date on which the amount is deposited. The same would be the position where instead of depositing the amount in cash, security has been furnished ; in other words the application shall be deemed to have been moved on the date the security is furnished. In cases where the amount due is deposited in cash no difficulty arises. The difficulty arises where instead of depositing the amount in cash the applicant desires to furnish security and moves application in that behalf which is not disposed of within the time allowed for moving application under Order 9 Rule 13 of the Code of Civil Procedure, but is disposed of thereafter. In the present case also the position was that although an application had been moved within the period of 30 days, which is the period prescribed for moving an application under Order 9 Rule 13, the same could be disposed of only after the said period had already expired. 5. WHERE a statute requires an applicant to do a certain thing within a particular time and for doing that thing he is required to obtain orders from the Court, the court is expected to pass orders within the time allowed for doing the thing. If the court fails to pass order within that time, the litigant would be entitled to claim that he has been mis-led by the conduct or order of the court and, therefore, he is entitled to be relieved of the hardship that is occasioned to him. 6. IN taking the above view I am supported by decisions of this Court. If the court fails to pass order within that time, the litigant would be entitled to claim that he has been mis-led by the conduct or order of the court and, therefore, he is entitled to be relieved of the hardship that is occasioned to him. 6. IN taking the above view I am supported by decisions of this Court. The leading case on the subject in Full Bench decision of this Court rendered in re ; Ram Bharose v. Ganga Singh, AIR 1931 Allahabad 727. The legal position has been summarised in this case in the judgment of Boys, J. at page 733 as follows :- " (1) the applicant must within 30 days file his application either with cash or with a statement that he is prepared to give security (and in the latter case, he may, of course, tender the security he proposes and ask for the direction of the Court. (2) IN the case where he wants to give security, if the Court refuses to direct security, he must deposit cash within the 30 days, or his application will be rejected. (3) If the court agrees to direct security, then (a) it will consider the security already offered, if it has been so offered ; or (b) name security to its satisfaction which must be filed within the 30 days. (4) If the applicant does not in fact ask for a direction or if, though the applicant does ask for a direction, the Court does not in fact give any direction, but in fact the Court does issue notice, the Court shall be taken to have approved the deposit of cash or the security offered as the case may be. (4) If the applicant does not in fact ask for a direction or if, though the applicant does ask for a direction, the Court does not in fact give any direction, but in fact the Court does issue notice, the Court shall be taken to have approved the deposit of cash or the security offered as the case may be. (5) If filed within the 30 days and accepted by the Court expressly or impliedly by the issue of notice the application is a good application, though it will be open to the decree-holder to challenge the nature and sufficiency of the security and to the Court under O. 9 R. 9 to make such further conditions as it thinks fit." After laying down the above five propositions mentioned above his Lordship noticed the argument which had been advanced at the bar and made this observation in -regard thereto ;- "IN the course of the argument it has been suggested that difficulty might arise if the Court delayed in giving its direction, or approving expressly or impliedly the security already tendered, so long that the period of limitation had expired before the applicant had fair opportunity of complying with the direction. It is not a case which we have now to consider, but in a suitable case it would be open to the Court itself to consider and exercise its inherent powers reserved to it by Sec. 151, Civil PC." In this case ex-parte decree had been passed on 30th July, 1926, and the application for setting aside the same was filed on 22nd August, 1929 which was claimed to be within limitation on the ground that it was made within 30 days of acquiring knowledge of the decree. Along with this application security bond was also furnished but no directions had been obtained by the applicant within the period of 30 days for furnishing of security on a previous application mentioned in the proviso. The Full Bench held that essential conditions prescribed by the proviso had been fulfilled. 7. THE above Full Bench decision came up for consideration before a Division Bench in re : Zafar Uddin Ahmad v. Madan Mohan, 1960 AWR 494 decided by V. Bhargava and B. Upadhya, JJ. In this case an ex-parte decree had been passed on 2nd June, 1953. 7. THE above Full Bench decision came up for consideration before a Division Bench in re : Zafar Uddin Ahmad v. Madan Mohan, 1960 AWR 494 decided by V. Bhargava and B. Upadhya, JJ. In this case an ex-parte decree had been passed on 2nd June, 1953. THE defendant applied on 6th July, 1953 under Order 9 Rule 13 of the Code. Simultaneously he moved an application seeking Court's direction regarding security which he intended to furnish through his personal bond. On 9th July, 1953 the Court passed single word order on this application "allowed." On 14th July, 1953 the applicant made a further deposit of Rs. 9/- apprehending that the personal bond furnished by him may be treated as short by this amount. THE trial court rejected the application under Order 9 Rule 13 on the basis that previous directions of the Court had not been obtained regarding security. THE Division Bench observed that within the period of limitation "all that he was required to do was done by him. THE Court, however, did not on that day pass orders on any of the applications and thus omitted to make a direction either permitting the applicant to furnish security or, in the alternative, rejecting his prayer so as to leave no option to him except to deposit the decretal amount in cash, within the period of limitation. THErefore, the applicant remained in suspense and it was after the period of limitation had expired that the court, on the 9th July, 1953, passed orders permitting the applicant to furnish security in the form of a personal surety bond." Allowing the revision of the defendant and setting aside the ex-parte decree passed by the Court below, again the Bench observed "we are also inclined to the view that..................in cases of this nature, where hardship arises due to omission by the Court to act within time, the appropriate course for the court would be to exercise its inherent powers under Section 151 CPC to mitigate the hardship when the court subsequently finds that it was a fit case where security should be furnished and that the security had been furnished within the period of limitation. At the same time, when the application for setting aside the ex-parte decree was made, the court should not have made the applicant suffer for no default of his own." 8. At the same time, when the application for setting aside the ex-parte decree was made, the court should not have made the applicant suffer for no default of his own." 8. THE proviso came up for decision recently before a Division Bench composed of Hon'ble Satish Chandra, C. J. and K. N. Singh, J. in Hukum Khan v Ist Addl. District Judge, Nainital, 1983 AWC 446. In this case ex-parte decree was passed on Ist June, 1981 and it was executed on 2nd July, 1981. THE defendant claiming that for the first time he acquired knowledge Of the decree on 2nd July, 1981 filed an application under Order 9 Rule 13 of the Code of Civil Procedure on 4th July, 1981. Simultaneously he also moved an application under Section 17 of the Act for furnishing security. On 4th July, 1981 itself the court ordered, "Let Rs. 2000/- be deposited in cash by 14-7-1981. Security in respect of the amount be furnished by the same date. THE applicant neither deposited the amount in cash nor he furnished the security, but on his application time was extended upto 1st August, 1981 for complying with the terms of the order dated 4th July, 1981. On Ist August, 19-1 the defendant deposited Rs. 2000/- in cash and furnished security bond in the sum of Rs. 3000/-. In this manner the order dated 4th July, 1981 was complied with on 1st August, 1981. This was within the period of limitation computed from the date of knowledge of the ex-parte decree. THE court passed orders on the defendant's application under Section 17 of the Act on 3rd August, 1981 allowing the same and accepting the security bond already furnished. This order, of course, was passed after the expiry of period of 30 days computing from the date of knowledge. THE notice of the application was issued for 27th August, 1981. THE amount deposited in cash and the amount for which security was furnished fell short by Rs. 200/-. On being pointed out by the plaintiff, the defendant sought permission to furnish security for this amount also which was granted and he then furnished security for this amount too. THE notice of the application was issued for 27th August, 1981. THE amount deposited in cash and the amount for which security was furnished fell short by Rs. 200/-. On being pointed out by the plaintiff, the defendant sought permission to furnish security for this amount also which was granted and he then furnished security for this amount too. THE plaintiff objected to the ex-parte decree being set aside on the plea that complete compliance of the proviso to Section 17 was not made within the period of 30 days and the application was liable to be rejected. THE court overruled the plaintiff's objection and set aside the decree. THE Division Beach, dealing with the case observed as follows in paragraph 5 at page 441 5- "...............THE trial court accepted the security bond as sufficient and issued notice to the petitioner. THErefore, it must be held that the court had approved the deposit of cash and the security offered by the respondent. On the petitioner's objection that the security was short by a sum of Rs. 200/-the court permitted the respondent to furnish security for that amount which was complied by the respondent. THE trial court had Jurisdiction io extend time for furnishing security and as such the trial court did not commit any patent error or exceeded its jurisdiction in passing the order dated 6-11-1981." (Emphasis supplied) THE Division Bench was of the opinion that the applicant was entitled to have the ex-parte decree set aside on the basis of the four propositions propounded by the Full Bench (Supra). On a fair interpretation of the proviso and the decisions referred to above, the following legal position emerges :- (1) Compliance of the proviso is mandatory in the sense that unless compliance is made, the ex parte decree cannot be set aside. (2) Where the amount due referred to in the proviso is deposited in cash no directions are required to be obtained from the court. (3) Directions of the court are required when instead of depositing the said amount in cash the defendant desires to furnish security. (4) For such directions, the defendant has to make an application. (5) When such an application is made the court should take decision thereon and give directions within the period of limitation prescribed for moving the application under Order 9 Rule 13 of the Code of Civil Procedure. (4) For such directions, the defendant has to make an application. (5) When such an application is made the court should take decision thereon and give directions within the period of limitation prescribed for moving the application under Order 9 Rule 13 of the Code of Civil Procedure. (6) Where the court instead of giving directions on the aforesaid application issues notice to the plaintiff-opposite party, the defendant can be said to have been mis-led by the action of the court. (7) In such a case the defendant is entitled to be relieved of the hardship that he would suffer by taking the view that the compliance of the provision has not been made within time. (8) The applicant is entitled to be relieved of the said hardship on the principles that no one should suffer on account of fault of the court and also by invoking inherent jurisdiction of the court under section 151 of the Code of Civil Procedure. (9) That once the court has agreed to accept the security, it has jurisdiction to extend time for furnishing the same. 9. IN my opinion, if the above propositions are applied to the facts of the present case, the applicant is entitled to have the ex-parte decree set aside. As noticed earlier the application under Section 17 of the Act had been moved by the applicant within the period of limitation prescribed for moving the application under Order 9 Rule 13 of the Code of Civil Procedure, the said period being 30 days. The Court instead of disposing of this application within the period of limitation, which in the present case was expiring on the very day on which the application was moved, directed notice to be issued to the plaintiff-opposite party and it was only much after the expiry of the period of limitation that the court rejected the application and directed the applicant to deposit the amount due in cash. While directing the applicant to deposit the amount in cash the court fixed a time within which the amount could be deposited. Within this time the applicant deposited the amount due. While directing the applicant to deposit the amount in cash the court fixed a time within which the amount could be deposited. Within this time the applicant deposited the amount due. On these facts it can very well be said that until the court rejected the applicant's application, under section 17 of the Act, he could legitimately presume that his prayer for furnishing security had been accepted and that all that he would be required to do would be to furnish security according to the directions of the Court. If the applicant's application for security had been rejected on 16-2-81 on the facts of the present case, it does appear that the applicant may have deposited the amount in cash on that very date. IN the circumstances, the applicant is entitled to be relieved of the hardship that he has suffered on account of the failure on the part of the court to give directions within the period of limitation. The applicant is entitled to be relieved from this hardship. 10. LEARNED counsel for the plaintiff-opposite party relied upon the following decisions for opposing the revision :- Smt. Gayatri Devi v. District Judge, Gorakhpur, 1982 (1) ARC 477, Ravi Shanker v. Addl. District Judge, Aligarh, 1982 (2) ARC 109, Karmo Bai v. II Additioaal District Judge, 1983 ARC 455 and Roop Basant v. Durga Prasad, 1983 ARC 565. In all these cases the proposition of law laid-down is that the amount due which is required to be deposited under the proviso includes pendente lite and future mense profits also if they have been decreed, even though they may not have been calculated and additional court fee may not have been paid. In the last case, K. C. Agarwal, J. further held that the requirements of Section 17 are mandatory and the defendant cannot take advantage of fact that the court issued notice. So far as the first three cases are concerned, they have no relevance for the purposes of the present case inasmuch as in pursuance of the court's order the amount that was deposited includes pendente lite and future mesne profits also. Particular reliance was placed by the learned counsel on the judgment of K. C. Agarwal, J. in the last case. Particular reliance was placed by the learned counsel on the judgment of K. C. Agarwal, J. in the last case. This was a case in which no direction was sought by the defendant-applicant for furnishing security, but he had deposited the amount in cash which amount was found to be insufficient to cover the entire amount due. The deficiency arose as the applicant had not deposited pendente lite and future mesne profits in respect of which also decree was passed although the said amount had not been calculated and additional court fee had not been paid. Agarwal, J. being of the opinion that pendente lite mesne profits also should have been deposited, held that compliance of the proviso had not been made and the mere fact that notice of the application under Order 9 Rule 13 of the Code of Civil Procedure was issued to the plaintiff did not bring about any change. Since this was not a case in which direction regarding furnishing of security had been sought, it has no application to the facts of the present case. 11. IN view of the above the revision is allowed and judgment and order dated 30-10-1981 of the learned II Additional District Judge, Lucknow is hereby set aside. Since the learned II Additional District Judge has rejected the application under Order 9 Rule 13, of the Code of Civil Procedure only on the ground of non-compliance with the requirements of the proviso, he shall deal with the said application on merits now. Costs of this revision shall, however, be easy. Revision allowed.