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2004 DIGILAW 2618 (ALL)

Paramshila Devi v. Kamlesh Kumar Pal

2004-12-23

ANJANI KUMAR

body2004
JUDGMENT Anjani Kumar, J.—This writ petition filed by the petitioner-tenant under Article 226 of the Constitution of India challenges the order dated 1.11.2003 passed by the revisional court. 2. The facts leading to filing of the present writ petition are as under : That the respondent-landlord, Kamlesh Kumar Pal filed a suit for eviction of the petitioner-tenant from the accommodation under his tenancy being Suit No. 108 of 2001, Kamlesh Kumar Pal v. Smt. Paramshila Devi. The suit was decreed ex parte on 6.5.2002 by the trial court. The petitioner-tenant, Smt. Paramshila Devi filed an application 4C for restoration of the suit with the prayer that the aforesaid ex parte decree may be set aside which was registered as Misc. Case No. 6 of 2002. The aforesaid restoration application was filed on the ground that the tenant had no knowledge of the pendency of the suit and the ex parte decree. The defendant-tenant had never been served with any notice nor received any summon issued from the trial court and as such she could not appear when the suit proceeded ex parte. It is only when the decree was put to execution, she came to know about the suit and then the tenant contacted her advocate and thus filed an application under Order IX, Rule 13 of the Code of Civil Procedure alongwith the application for setting aside the ex parte decree dated 6.5.2002. The tenant also filed an application for accepting the security bond as provided under Section 17 of the Provincial Small Cause Courts Act, 1887. The aforesaid application was contested by the landlord. The trial court after hearing the parties allowed the application for setting aside the ex parte decree and restored the suit to its original number. Aggrieved by this order passed by the trial court, the respondent-landlord filed a revision being S.C.C. Revision No. 13 of 2003. The revisional court allowed the revision vide its judgment and order dated 1.11.2003, setting aside the order of the trial court restoring the suit to its original number and rejected the restoration application 4C filed by the tenant. Thus, this writ petition. 3. The revisional court allowed the revision vide its judgment and order dated 1.11.2003, setting aside the order of the trial court restoring the suit to its original number and rejected the restoration application 4C filed by the tenant. Thus, this writ petition. 3. Learned counsel for the petitioner has submitted that the revisional court has committed an error apparent on the face of record when it allowed the revision on the ground that the petitioner has not complied with the provisions of proviso to Section 17 of the Provincial Small Cause Courts Act, 1887, inasmuch as the bond furnished by the petitioner was not stamped. Learned counsel for the petitioner has referred to the order Annexure-14 dated 17.12.2002 passed by the trial court whereby the trial court has accepted the bond furnished by the petitioner in compliance with the proviso to Section 17 of the Provincial Small Cause Courts Act, 1887. 4. Learned counsel for the petitioner has submitted that the revisional court has committed an error when it allowed the revision only on the ground that the bond which has already been accepted by the Court, was held to be not valid on the ground that it was not stamped. In support of his contention learned counsel for the petitioner relied upon the decision of the Apex Court in Bhagwan Dass Arora v. Ist Additional District Judge, Rampur and others, 1983 ARC 735, wherein the Apex Court in paras 6 and 7 has held : "6. To recall a few facts, an application praying for an order under the proviso to Section 17 (1) was made within 2 days from the date on which the suit was decreed ex parte. The suit was decreed ex parte on August 6, 1977 and the application under the proviso to Section 17 (1) was made on August 8, 1977. On that very day, the Court made an order for security bond to be furnished for a certain amount and a bond was furnished with the legal infirmity as found by the learned Judge of the High Court that instead of it being stamped as required by the Stamp Act, it was stamped with a Court-fee stamp of Rs. 2. 7. Look at the agony and misery of the appellant. 2. 7. Look at the agony and misery of the appellant. Two premier High Courts, Madras and Calcutta, differ on the requirement of a valid security bond to comply with the proviso to Section 17 (1). And the degree of difference is not narrow but irreconcilable. If the view taken by the Madras High Court had prevailed with the learned Judge, the matter would have been decided in favour of the appellant because he had already furnished a bond stamped with court-fee stamp of Rs. 2 and it was never suggested that it was inadequate. But as the learned Judge preferred the view taken by the Calcutta High Court, the security bond was found to be not duly stamped. However, when the matter was before the trial court, on the contention being raised by the decree-holder, the appellant, as directed by the Court, did supply the requisite stamps as required by the provisions of the Stamp Act. There was no fresh bond but the old bond was duly stamped. In this situation, why should the appellant be penalized by shutting the doors of justice even though as advised by his lawyer, he acted in the best possible manner to comply with the Courts order. Uncertainty of the law, as far as the State of U.P. is concerned, came to be resolved by the decision of the learned single Judge of the High Court. Till then, the trial court was faced with two conflicting views of two different High Courts. What ought to be the position of an indigent litigant, advised by his lawyer, in this situation left us guessing if not wholly bewildered. We are of the opinion that in this situation, the litigant cannot be visited with the consequences of being thrown out of court and shutting the doors of justice in his face. What horrible agonising situation the appellant faced cannot be gauged. He had produced the surety bond on the first day, i.e., August 8, 1977 duly stamped as then advised. And had the learned single Judge preferred the Madras view which required that it should be stamped with court-fee stamp, the appellant was fully protected. To his utter misfortune, the Calcutta view found favour with the learned single Judge and the appellant suffered the irremediable consequence of this later day preference. And had the learned single Judge preferred the Madras view which required that it should be stamped with court-fee stamp, the appellant was fully protected. To his utter misfortune, the Calcutta view found favour with the learned single Judge and the appellant suffered the irremediable consequence of this later day preference. We are of the opinion that preferences of Judges should not be allowed to work hardship on litigants in respect of a procedural provision. In this state of law and in view of the further fact that after the limitation period of 30 days expired, Munsarim of the Court drew the attention of the Court to the fact that the security bond was not duly stamped, the appellant, a litigant, cannot be penalized on the pain of being thrown out of Court on this technical ground. Justice cannot be a playground by kicking the ball from one Court to other depending upon which of the conflicting views will ultimately prevail leaving a litigant on the tenterhooks and ultimately to be told that he acted according to the view taken by a Full Bench of a High Court which did not find favour with the learned single Judge of the High Court of the State in which he resided. This is not justice. This is legalise which ought to be avoided." 5. Learned counsel for the petitioner has further relied upon the decision of this Court in Suresh Chand v. VIIth Additional District Judge, Muzaffarnagar and others, 1991 (2) ARC 545 , which provides that Section 17 of the Act being procedural in nature has to be interpreted in such a way as to advance the cause of justice and to facilitate to meet the ends of justice. The provision is to be liberally construed. The Court has to see that substantial compliance has been done. The same view has been reiterated by this Court in the decision in Munney and another v. IVth Additional District Judge, Aligarh and others, 1997 (Supp) AWC 443 : 1997 (2) ARC 445. The provision is to be liberally construed. The Court has to see that substantial compliance has been done. The same view has been reiterated by this Court in the decision in Munney and another v. IVth Additional District Judge, Aligarh and others, 1997 (Supp) AWC 443 : 1997 (2) ARC 445. It is further submitted by learned counsel for the petitioner that in view of the law laid down by this Court in a decision in Smt. Mohammadi and others v. Smt. Abna Begum and others, 1985 (1) ARC 264, and in view of Bhagwan Dass Arora (supra) and other cases even assuming that the Court has come to the conclusion that once the bond is accepted, though the same was not duly stamped, it ought to have granted time to the petitioner to explain it and to pay the stamp duty and not to reject as has been done by the revisional court. 6. On the other hand, learned counsel for the respondent relied upon a decision of the Apex Court in Kedar Nath v. Mohan Lal Kesarwani and others, 2002 ACJ 145 ; and two judgments of mine in Vinod Bansal v. Additional District Judge, Bulandshahr and others, 2002 (2) AWC 1640 : 2002 ACJ 714 and Sheo Dutt v. Xth Additional District Judge, Aligarh and others, 2002 (5) AWC 4052 : 2002 ACJ 1429, wherein this Court has held that the compliance of the proviso of Section 17 is mandatory before entertaining an application for setting aside the ex parte decree. Learned counsel for the respondent has submitted that in view of the aforesaid law laid down by this Court the compliance being mandatory means compliance in accordance with law, he therefore, justifies the view of the revisional court. The revisional court has rightly reversed the order of the trial court as bonds submitted by the petitioner was not duly stamped. So far as the decision cited by learned counsel for the respondent are concerned there is no dispute with regard to the proposition. It is also not disputed that the bond furnished by the petitioner was not duly stamped but it cannot be said that there was no compliance with the proviso to Section 17 of the Act before filing the application for setting aside the ex parte decree. It is also not disputed that the bond furnished by the petitioner was not duly stamped but it cannot be said that there was no compliance with the proviso to Section 17 of the Act before filing the application for setting aside the ex parte decree. The decisions relied upon by learned counsel for the respondent will not help him for justifying the order of the revisional court. 7. In view of what has been stated above, to me it appears that the view of the revisional court cannot be sustained in law. It is then contended by learned counsel for the respondent that the revisional court has reassessed the evidence and arrived at the finding that the view of the trial court that the petitioner-tenant could have refused summons deserves to be set aside and therefore, has rightly reversed. A Division Bench decision of this Court in Laxmi Kishore and another v. Har Prasad Shukla; 1981 ARC 545 ; wherein it has been held that even assuming that the revisional court comes to the conclusion that the trial court has arrived at the conclusion on the some evidence which is not admissible or has ignored the evidence which is admissible, it could have reversed the finding of the trial court but even it may not allow the objection filed by the respondent, it ought to have remanded back the matter to the trial court. 8. To me it appears that the view of the Apex Court in the case in Ramji Dass and others v. Mohan Singh, 1978 ARC 496 ; wherein the Apex Court has held that in the matter of setting aside the ex parte decree the Court should take into consideration the merit of the case rather than the technicalities. 9. In this view of the matter, the order passed by the revisional court refusing to set aside the ex parte decree is not sustainable in law. The order of the revisional court is quashed and the order of the trial court is maintained and the application filed by the petitioner-tenant for setting aside the ex parte decree stands allowed. The matter may now go to the trial court for decision on merits, since the matter is fairly old the trial court is directed to decide the suit expeditiously. 10. In the result, the writ petition succeeds and is allowed with the direction referred to above.