Munney and Another vs IVth Additional District Judge and Others

J.C. Gupta, J.—This writ petition is directed against the order dated 11.3.1981 passed by the IVth Additional District Judge, Aligarh in S.C.C. Revision No. 171 of 1979 whereby the learned Judge allowed the revision by setting aside the order of the Judge Small Causes Court dated 19.2.1979 allowing Petitioner''s application for setting aside the ex parte decree which was passed on 19.2.1979.

After when the suit had been decreed ex parte, Petitioners moved an application for setting aside the decree under Order IX, Rule 13, C.P.C., on 3.3.1979 alongwith an affidavit and an application for permission to file security in lieu of depositing the decretal amount in cash. The court allowed the said application and granted permission as was sought for by the Petitioners. On 17.3.1979 the Petitioners filed security bond alongwith the requisite stamp papers. The court was of the opinion that the security bond was defective. On the same day, learned Counsel for the Petitioners filed fresh security bond removing the defect pointed out by the court annexing therewith the stamp papers which were used with the earlier security bond. It further transpires that by way of abundant caution, the Petitioners on 11th August, 1979 filed before the court fresh requisite stamps in order to avoid any technical objection, which could be raised. The trial court finding a sufficient cause set aside the ex parte decree. While allowing the said application, the trial court also examined the objection raised with regard to the validity of the security bond which admittedly was filed within the prescribed period of one month. The trial court specifically went into the question whether in the circumstances, the Petitioners had made compliance of the provisions of Section 17 or not and recorded a categorical finding in favour of the Petitioners. Respondent Nos. 3 to 5, the Plaintiffs challenged the said order before the revisional court and the revisional court allowed the revision holding that since the stamp papers had already been used on which defective security bond had been written, fresh security bond on separate papers filed on the same day could not be taken into consideration being insufficiently stamped. It further came to the conclusion that filing of court-fee stamps in the month of August, 1979 was of no consequence.

Learned Counsel for the Petitioners has been heard so also Sri M. S. Haq, counsel for the newly added Respondent No. 6. Respondent Nos. 3 to 5 have not appeared despite sufficient service. Record has also been perused.

Learned Counsel for the Petitioners contended before this Court that the revisional court has erred in law in taking a very narrow view of the matter while setting aside the order of the trial court, whereby the Petitioner''s application for setting aside the ex parte decree was allowed and thereby great injustice has been done to the Petitioners. After going through the records and on a consideration of facts and circumstances of the case, this Court is of the view that the order of the revisional court is not sustainable in law. The court is to advance justice and not to deny the same to the parties on mere technicality. Section 17 of the Small Causes Court Act requires the judgment debtor either to deposit the decretal amount in cash or to furnish security to the satisfaction of the court under the permission of the court. Undisputedly the Petitioners moved an application for restoration within the prescribed period of limitation of one month along with the application for permission to file security and that permission was allowed by the court. In compliance thereof, the Petitioners filed security bond on requisite stamps. The security bond, which was written on the said stamps, had some defects and when those defects were pointed out by the court, the Petitioners on the same day filed another security bond alongwith the stamps on which the defective security bond was written. Not only this, the Petitioners by way of abundant caution, had also furnished fresh stamps in the month of August, 1979. In the circumstances, it could not be said that the Petitioners failed to make due compliance of the provisions of Section 17 of the Act. As already observed above, the parties should not be denied justice on mere technicality.

In the case of Suresh Chandra v. VIIth Additional District Judge, Muzaffarnagar and Ors. a single Judge of this Court took the view that the provisions of Section 17 of the Act are only procedural and their object is to protect the interest of decree holder. It was further observed that:

The cardinal principle of interpretation of a statute is that the construction should be so adopted which may facilitate the smooth working of the scheme of the Act. It should be in conformity with the object sought to be achieved. It should be to promote justice and avoid unreasonableness. It should not allow artificiality in law.

Section 17 of the Act being only procedural in nature has to be interpreted in such a way as to advance justice and to facilitate to meet its ends. The provision is to be liberally construed. The court has to see that substantial compliance has been done.

In another case of Prabhu Dayal v. District Judge, Saharanpur 1983 (1) ARC 757, this Court has taken a view that security, furnished by the Defendant in compliance of Section 17(1) of the Act, if accepted by the Court, inspite of the fact that it was unregistered, such an order should not be disturbed.

As already observed above, in the instant case, the trial court accepted the security furnished by the Defendants in compliance of Section 17(1) of the Act so as to advance justice and to facilitate to meet its ends, therefore, this Court is of the view that the revisional court committed a gross error of law in the exercise of its jurisdiction in setting aside the order of the trial court, which permitted the Petitioners to contest the suit on merits. For all the above reasons, this petition must succeed.

Learned Counsel for the Respondent No. 6 during the course of arguments argued thai the property in question vests in Sunni Central Waqf Board and Respondent Nos. 3 to 5 had no right to bring the suit for recovery of rent in respect of the suit property. Since the order of the trial court has been maintained and the suit has been restored to its original number, Respondent No. 6 may approach the trial court and put his grievance before the said court and if such an attempt is made by Respondent No. 6, the trial court shall hear Respondent No. 6 and decide his application in accordance with law.

With the above observations, this writ petition is allowed. The order of the Additional District Judge, Aligarh dated 11.3.1991 is set aside and that of the trial court dated 22.8.1979 is restored. In the circumstances, no order as to costs is made.