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2010 DIGILAW 785 (ALL)

R. B. Shukla v. II A. D. J. Disst. Judge

2010-03-09

DEVI PRASAD SINGH

body2010
JUDGMENT 1. Heard learned counsel for the petitioner. None appears for the private respondent. The plaintiff respondent No.2 filed suit before the Judge, Small Cause Court, Bahraich registered as Misc. Case No.1/74/84. The suit was decreed ex parte by order dated 4.8.1984. Feeling aggrieved, the petitioners defendants preferred a revision which has been dismissed by the impugned order, hence they preferred the present writ petition. 2. Mr. U.S. Sahai, learned counsel appearing for the petitioners while assailing the impugned order submits that the suit was decreed for an amount of Rs.1,680/-. Apart from the decretal amount, Rs.417.10 was mentioned as cost of the suit. The amount pendentilite and future damage is kept out of consideration. While preferring the revision, the petitioners have not deposited the entire decretal amount, i.e. Rs. 2097/-. 3. It has been stated by the petitioners' counsel that the amount of Rs.1,680/- was deposited. However, the cost of Rs.417.10 was not deposited. He further submits that the petitioners are ready to deposit the amount. 4. While assailing the order, learned counsel for the petitioners submits that under Section 17 of the Provincial Small Causes Courts Act, 1987, in short Act, though there is a provision to deposit the decretal amount while moving an application for recall of the ex parte judgment and decree under Order 9 Rule 13 CPC but that is not mandatory and in case there is substantial compliance of Section 17 of the Act, then the application should not have been rejected only on the ground that the entire decretal amount has not been deposited. It has been submitted that the trial Court has allowed the application filed under Order 9 Rule 13 CPC keeping in view the insufficiency of service on the defendant. The submission is that once the trial Court has allowed the application filed Order 9 Rule 13 CPC, the revisional Court should not have reversed the judgment of the trial Court. 5. Section 17 of the Act provides that an application Order 9 Rule 13 CPC for setting aside decree passed ex parte or for review of the judgment shall at the time of presenting the said application either deposit the amount due under the decree or in pursuance to the judgment or give such security for the performance of decree or for compliance of the judgment of the Court. It has been stated that the petitioner has deposited an amount of Rs.1680/- only and the negligible amount of Rs.417.10 was not deposited. 6. Other submission is that since the service was not sufficient, the trial Court has acted in its jurisdiction to set aside the ex parte decree in pursuance to the provisions contained in Order 9 Rule 13 CPC . 7. Now, the question involved in the present writ petition is whether non-compliance of the provisions contained in Section 17 of the Act vitiates the order of the trial Court passed under Order 9 Rule 13 CPC . For convenience, Section 17 of the Act is reproduced as under : "17. Application of the Code of Civil Procedure .-(1) 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 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. (2) Whereas person has become liable as surety under the proviso to sub-section (1), the security may be realized in manner provided by Section 145 of the Code of Civil Procedure, 1908." 8. A plain and literal construction of Section 17 of the Act shows that for presentation of an application under Order 9 Rule 13 CPC or review of the judgment, it shall be incumbent on the applicant to deposit in the court the amount due from him under decree or in pursuance of the judgment. The proviso to Section 17 of the Act at the face of record makes it obligatory to deposit the entire decretal amount. 9. It is settled law that every word of statute should be given a meaning. While interpreting a statutory provision the entire section or whole of the statute, as the case may be, should be considered. The proviso to Section 17 of the Act at the face of record makes it obligatory to deposit the entire decretal amount. 9. It is settled law that every word of statute should be given a meaning. While interpreting a statutory provision the entire section or whole of the statute, as the case may be, should be considered. According to Maxwell on the Interpretation of Statutes (12th edition page 36) any construction which may leave without affecting any part of the language of a statute should ordinarily be rejected. "12. Relevant portion from Maxwell on the Interpretation of Statutes (12th edition page 36) is reproduced as under:- "A construction which would leave without effect any part of the language of a statute will normally be rejected. Thus, where an Act plainly gave an appeal from one quarter sessions to another, it was observed that such a provision, though extraordinary and perhaps an oversight, could not be eliminated." 10. Hon'ble Supreme Court also by catena of judgements held that while interpreting a statute, every word, line and entire provision should be looked into in context to which it is used and not in isolation vide Grasim Industries Limited Vs. Collector of Customs; Easland Combines Vs. CCE; A.N. Roy Vs. Suresh Sham Singh and Deewan Singh Vs. Rajendra Prasad Ardevi. 11. Accordingly, in case the provision contained in Section 17 of the Act is interpreted literally, it is incumbent on the applicant to deposit the entire dues or decretal amount or furnish security. The statutory mandate does not extend any right to escape from liability conferred by the proviso to Section 17 of the Act. Learned counsel for the petitioners submits that the controversy with regard to Section 17 has been referred to the larger Bench vide Hukum Khan versus Addl. District Judge, Nainital and others. However, he has been failed to produce any judgment of this Court or Hon'ble Supreme Court in which proviso of Section 17 of the Act has been interpreted otherwise. 12. In the present case, admittedly, the defendants petitioners have not deposited the amount of Rs.417.10 out of Rs.2097/- in which Rs.1,680/- has been deposited. Once the statutory provisions makes it obligatory to deposit the entire decretal amount or furnish security, then it is not open for this Court to interpret the provision otherwise giving any latitude or gallery to the applicant defendant to move otherwise. Once the statutory provisions makes it obligatory to deposit the entire decretal amount or furnish security, then it is not open for this Court to interpret the provision otherwise giving any latitude or gallery to the applicant defendant to move otherwise. Accordingly, the finding recorded by the revisional court holding that the defendants petitioners should have deposited the entire decretal amount or should have furnished security for the purpose in terms of the proviso to Section 17 of the Act does not seem to suffer from any impropriety or illegality. 13. The provision contained in Section 17 of the Act seems to have got mandatory force. In case the legislature has provided to do certain thing in certain manner for depositing the entire decretal amount or furnishing security in lieu thereof, then that should be done in the same manner and not otherwise. Any deviation to the statutory provisions shall frustrate the very object of proviso to Section 17 of the Act. 14. Accordingly, the judgment and order passed by the learned Revisional Court does not seem to suffer from any impropriety or illegality. The writ petition is devoid of merit. It is accordingly dismissed.