Champalal Hajarimal and Another vs (sic) Chogalal Ramniwas

Samvatsar, J.—The Plaintiffs Chogalal Ramniwas filed a suit against two Defendants (1) Champalal and (2) Ramchandra for a sum of Rs. 430/10/3 in the Court of the Small Causes at Indore. The Defendants contested the claim and the trial Court therefore proceeded with the trial. On 29-1-1951 the Plaintiffs applied for amendment of the plaint and the case was fixed for the reply of the Defendants on 1-2-1951. On that day when the case was called the Defendants and their pleader were absent and an ex parte decree was passed against the Defendants.

The same day the Defendant''s counsel applied for setting aside the ex parte decree. On 20-2-1951 the Defendant No. 1 furnished security as required by Section 14 of the Small Cause Courts Act and on 11-8-1951 filed an affidavit in support of the application. In this affidavit the Defendant No. 1 has stated that he is a resident of Dhar and could not reach the Court in time on that date as he missed his first bus at Dhar.

The trial Court dismissed the application for setting aside the decree holding that there was no sufficient reason for the absence of the Defendants. The trial Court also held that the Defendant No. 2 had not furnished any security of affidavit though the decree was passed jointly and severally against both. Aggrieved by this order the Defendants have preferred this revision application.

I do not think that the order of the lower Court can be supported on merits. The case was fixed on 1-2-1951 only for filing a reply to the amendment application and there was no order for the parties to remain present. The trial Court could allow the amendment as in fact it did but was certainly not justified in proceeding to pass an ex parte decree. The counsel for the Defendants appeared after some time and filed an application for setting aside the decree on the same day. The Defendant No. 1 had also turned up as stated by him in the affidavit and there is no reason to disbelieve the explanation given by him for his absence when the case was called.

The next contention was that security bond was only given on behalf of Defendant No. 1 and therefore the application could at the most be regarded as having been filed by the Defendant No. 1 alone. Assuming that this is a valid contention the case would be covered by the proviso to Order 9, Rule 13, CPC which empowers the Court to set aside the whole decree if it was indivisible and not capable of being set aside only against the Defendant applying to set it aside. The trial Court ''was under the circumstances not justified in rejecting the application of the Petitioners on these grounds.

But a further and a controversial point is raised by the learned Counsel for the opponent. Mr. G.C. Gupta has urged that the application for setting aside the ex parte decree was a defective application as it was hot accompanied by a security bond furnished after obtaining the permission of the Court to do so. The learned Counsel relied upon the language of Section 14 of the Madhya Bharat Small Cause Courts Act which corresponds to Section 17, Provincial Small Cause Courts Act. He has also referred to the decision of Mulla J. in - Jagdamba Prasad and Others Vs. Ram Das Singh and Another, and the judgment of Gulam Hasan J. in - AIR 1944 104 (Oudh) He has also brought to my notice a decision of this High Court in - ''Lalaram v. Keshrimal'', Sm. C. Rev. No. 39 of 1950 (C). Since the provisions of Section 14 are similar to Section 17, Provincial Small Cause Courts Act, I will in the discussion of the subject refer to that section. The proviso to Section 17(1) which has a material bearing on this point is as follows:

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 portion underlined (here in '' '') was a(sic) an amendment to the Act in the year 1935 (sic) was some controversy over the interpreta(sic) this clause before the amendment and even a(sic) amendment the controversy has not quite su(sic) According to some High Courts, the words (sic) time of presenting the application" are only (sic)tory. According to others the language of th(sic)tion is mandatory, but there is sufficient com(sic) with the requirements of the proviso if the se(sic) is furnished or deposit is made within the (sic) of limitation prescribed for the application (sic) other High Courts have held that the langu(sic) the proviso is mandatory and must be strictl(sic)plied with.

The main contention raised by Mr. (sic) Gupta is that the application made by the(sic)tioner for setting aside the decree was not (sic)panied either by deposit of the decretal or security bond. But the amendment of (sic) not affect this part of the argument as the(sic) been no change in the language of this part(sic) Section. The earlier authorities are there(sic)levant for consideration of this aspect. Th(sic) Court of Madras in - ''Assan Mahomed (sic) Rahim Sahib'' AIR 1920 Mad 562 (F. B.) (I(sic) that the provisions of Section 17(1) are man(sic) but the deposit of the decretal amount (sic) made or security given within the period of (sic)tion although it did not accompany the a(sic)tion itself. The Full Bench proceeded to ta(sic) view, as in their opinion no objection coul(sic) been taken if fresh application had been p(sic)ed when the security was deposited.

The same view was taken by the Bombay(sic) Court in - Haji Ahmed Haji Ibrahim Vs. Abdulhussein Tayaballi, and the High (sic) of Allahabad in - Ram Bharose Vs. Ganga Singh . The High C(sic) Lahore in - ''Gedimal Dharamdas v. Hu(sic) Shedlu Ram'' AIR 1931 Lah 332 (F. B.),(G(sic) that the proviso under which the surety (sic) be deposited along with the petition wa(sic) directory and not mandatory and arrived (sic) same results as those of the other High (sic) referred above. Even after the amendment (sic) High Courts continued to hold that if secur(sic) not furnished along with the application (sic) given subsequently within the period of limi(sic) it was a sufficient compliance with Section 17 (sic)fresh application could without objection (sic) been filed on that day.

Reference may be made to - Bhola Vs. Mt. Ram Rati, and - ''Tarach(sic) Durappa Tavanappa'' AIR 1943 Bom (sic) Chathiyelan Kanna Kurup v. Raman Nayar(sic) 1943 Mad 51 (J); - Mohanlal v. Firm M(sic) Nand Lal'' AIR 1946 Lah 62 (K). The High (sic) of Calcutta has in - Mrityunjoy Ganguly Vs. Bholanath Ganguly, and the High Court of (sic) has in - Ghinoo Chaudhuri Vs. Ramjapu Singh, likewise held that (sic) application for setting aside the decree accompanied by the security deposit and the(sic)rity was filed subsequently and yet with(sic) period of limitation when separate app(sic) could have been legally preferred the (sic) of Section 17 (1) are substantially complied with(sic)

By the amendment of the proviso, it (sic) provided that when instead of cash dep(sic) Defendant wants to give security in othe(sic) the direction of the Court must be obta(sic) a previous application made by him in(sic) half. Mr. G.C. Gupta, the learned Advocat(sic) non-applicant therefore next contended (sic) Petitioner had to make an application (sic) before the application to set aside the (sic) is filed. The contention of Mr. Gupta re-(sic) support from the view expressed in - ''AIR Oudh 104 (B) and -- Jagdamba Prasad and Others Vs. Ram Das Singh and Another, (sic) Bhola Vs. Mt. Ram Rati,

(sic) In the present case the application under Order (sic) 13, Code of Civil Procedure, way made on 1-2-1951 and a security bond was furnished nor cash (sic)eposited along with it. The Court could have (sic)ed this application but without doing so it allowed to remain pending. The deficiencies made good on 20-2-1951 when the period pressed by Article 164 had not expired and the ap-(sic)nt was entitled to file a fresh application with-(sic)bjection on this score. The security was also (sic)shed after obtaining the direction of the (sic) on an application made previously on the (sic) day. There is no reason why this should (sic) be treated as a substantial compliance with provisions of Section 17(1).

(sic) application though filed earlier was in-(sic)ete and could be held to have been presented (sic)2-1951 as on that day a fresh application (sic) Defendants could have been filed. This view support from the decision in - ''Mt. Bipti (sic) Mt. Bipti Vs. Kali Din, and -''AIR 1951 (sic)(L)''. In the latter case the Calcutta High (sic) held that when direction of the Court to (sic) security is not obtained before the appli-(sic) under Order 9, Rule 13, CPC is filed and (sic) security is not deposited along with that (sic)tion but some days later, the application (sic)d be taken to have been presented when secu-(sic) was deposited. A Division Bench of the High Court of Allahabad has taken a similar view in (sic) Bipti v. Kalidin'' Mt. Bipti Vs. Kali Din, The (sic)d Judges dissented from the view expressed (sic)lla J. in - ''Murarilal v. Mohammad Yasin'' (sic) 939 All 46 (O) and in - ''AIR 1943 All 288 (sic) and held that if the defects in the appli-(sic) were removed by a date on which a fresh (sic)tion was possible, the original application (sic) Order 9, Rule 13 could be treated as presented (sic)h a day. In the case of - ''AIR 1946 Lah 62 (sic) Abdul Rahman J. held that if the provisions (sic)17(1) are complied with and the defects (sic)d before the period provided by Article 164 ex-(sic) the applications should be deemed to have (sic)made on the date the defects are removed. (sic) a case where the Defendant applied under (sic) 13, CPC without furnishing any (sic) Subsequently the Court ordered the de-(sic) to furnish security and thereafter the (sic)nt furnished a security bond. By this time (sic)ttation had not expired and the High Court (sic)t the application should be deemed to have (sic)d on the date the security was furnish-(sic).

(sic) The trend of authorities is thus overwhel-(sic) in support of the view presented by Mr. (sic) Bhalerao, the learned Counsel for the peti-(sic) The various High Courts have not ignored (sic)uge used in Section 17(1) of the Small (sic) Court Act but have proceeded on a differ-(sic)ciple. According to these High Courts an (sic) which is not in conformity with the (sic) of Section 17 of the Provincial Small (sic) Courts Act is defective and could be reject-(sic) Court. But if the Court keeps it pend-(sic) allows the deficiency to be made good (sic) defects are actually removed on a day (sic) fresh application was competent, the (sic) application could be deemed to have been (sic) on the date on which the defects are (sic).

(sic)er was not discussed in details in -(sic) No. 39 of 1950 (Madh-B) (C)'', and it appears that the latest authorities on this subject viz., - Mt. Bipti Vs. Kali Din, '' and - Mrityunjoy Ganguly Vs. Bholanath Ganguly, as also - '' AIR 1946 Lah 62 (K)" were not brought to the notice of the learned Judge who decided that case. In - ''AIR 1946 Lah 62 (K)'', - ''Mahomed Ramzan Khan v. Khubi Khan'' AIR 1938 Lah 18 (P) has been considered and explained and in - Mt. Bipti Vs. Kali Din, the decision in - Bhola Vs. Mt. Ram Rati, has been considered and followed. In my opinion the application in the present case should be deemed to have been filed on February 20, 1951 and it was not on that day barred by time.

I allow the revision application and set aside the order of the trial Court. The application under Order 9, Rule 13 is allowed and the-decree in Small Cause Suit No. 932 of 1950 is set aside. The parties shall in the circumstances of this case bear their own costs of this Court.