Shesh Narain Shukla vs XIVth Additional District Judge and Others

Sudhir Narain, J.—This writ petition is directed against the order dated 4.2.1995, passed by Respondent No. 2, rejecting the application of the Petitioner for setting aside the ex parte decree dated 27.2.1991 and the order dated 21.9.1995, passed by Respondent No. 1, dismissing the revision against the aforesaid order.

The facts in brief are that Respondent No. 3 filed suit No. 31 of 1989 against the Petitioner for recovery of arrears of rent, ejectment and damages in the Court of Judge, Small Causes, Kanpur. It was alleged in the application that the Plaintiff purchased the property in the year 1986. She constructed the shops and one of the newly constructed shop was let out to the Petitioner at monthly rent of Rs. 200 in October, 1988. her husband who was working in Air Force retired from service. He needs the shop in question. A notice dated 4.9.1989 was sent to the Petitioner demanding arrears of rent for the period 1.10.1988 to 31.8.1989 but the Petitioner did not comply with the notice, The Petitioner filed the written statement in the case. In the suit, 13.12.1990 was the date fixed for hearing. The Petitioner did not appear in the case and again 19.1.1991 was fixed for ex parte hearing. The Petitioner again did not appear on the said date and the Court decreed the suit ex parte on 7.2.1991.

The Petitioner moved art application under Order IX, Rule 13 of the CPC on 18.3.1991 to set aside the ex parte decree dated 27.2.1991. This application was dismissed in default on 30.7.1991. the Petitioner preferred a revision against this order. The revision was allowed on 15.10.1991. Respondent No. 2 after hearing Counsel for both the parties rejected the application by order dated 4.2.1995 on the finding that there was no sufficient cause shown by the Petitioner for appearance on 19.1.1991 and secondly, the Petitioner did not deposit the required amount as contemplated u/s 17(1) of the Provincial Small Cause Courts Act (hereinafter referred to as ''the Act'') The Petitioner preferred a revision against this order. Respondent No. 1 has dismissed the revision by order dated 21.9.1995. The Petitioner has challenged these orders in the present writ petition.

I have heard learned Counsel for the parties.

Learned Counsel for the Petitioner urged that the view taken by the Courts below that the Petitioner did not comply with the provisions of Section 17(1) of the Act, is erroneous in law. The Courts below have rejected the application taking the view that the Petitioner did not deposited the entire amount within limitation and'' secondly, the amount was ''short'' which was deposited even after prescribed period.

Admittedly, the Petitioner had made the following deposits:

Date of Deposit Amount deposited 1. 31.5.1990 Rs. 2,500 2. 24.9.1990 500 3. 20.5.1991 2,000 4. 16.1.1995 2,000

It is not disputed that on the date of filing of the application to set aside that ex parte decree on 18.3.1991, the decretal amount payable by the said date was Rs. 7,142. The Petitioner had not filed any application along with an application under Order IX, Rule 13, CPC for grant of time to deposit the amount. Prior to this date he had deposited Rs. 2,500 on 31.5.1990 and Rs. 500 on 24.9.1990 in the suit itself prior to the passing of the ex parte decree. The Petitioner deposited Rs. 2,000 on 20.5.1991 after two months from the date of filing of the application to set aside the ex parte decree. Even if Rs. 2,000 deposited on 20.5.1991 is taken into account, the Petitioner had deposited only Rs. 5,000. On 16.1.1991, the Petitioner further deposited Rs. 2,000. The total amount deposited by the Petitioner by this time came to Rs. 7,000.

The limitation for filing an application to set aside ex parte decree is 30 days under Article 123 of the Limitation Act, 1963 and the same period shall be taken for compliance of Section 17(1) of the Act. proviso to Sub-section 91) of Section 17 of the Act provides that an application for an order to set aside the 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 security for the purpose of satisfaction of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf had directed.

It was incumbent upon the Petitioner to have either deposited the decretal amount in the Court on the date of presenting the application or to have furnished the security as the limitation for depositing the amount or furnishing the security is 30 days. If the amount is not deposited within the limitation, it will not be treated as compliance of Section 17(1) of the Act.

In Mt. Bipti Vs. Kali Din, , the Division Bench after considering the various cases held that where any of the necessary conditions required by Section 17 are done after expiry of the period of limitation, the application for setting aside of an ex parte decree cannot be considered to be a proper application. This view has been followed in a recent decision in Ayodhya Prasad v. Krishna Autar 1992 (2) ARC 357.

Learned Counsel for the Petitioner contended that the Court had jurisdiction to extend the time to deposit the amount or furnish the security till the date the application is decided. If any, amount is deposited prior to the date of hearing of the application it will be assumed that the Court had accepted the amount after condoning the delay. The Court has certainly power to extend the time to deposit the amount or furnish the security as required u/s 17 of the Act.

In a Full Bench decision in Gedimal v. Hunamal AIR 1931 Lah 332, it was held that the provisions of Section 17 are directory and Court can extend time within which deposit has to be made or security furnished.

In Smt. Ram Pyari v. Budhsen and Ors. AIR 1977 All. 309, this Court taking into consideration the amended provisions of the Limitation Act held that Section 5 applies not only in regard to filing an application to set aside ex parte decree but also with regard to the compliance of two conditions to be fulfilled u/s 17 of the Act. On such an application being filed the Court will have to determine whether there was sufficient cause to condone the delay the Court observed as follows:

The same principle would be applicable even if the condition is fulfilled after the expiry of the period of limitation the result will be that the application can be deemed to have been presented on that day even though by that time the period of limitation may have expired. In that event the question for determination would be whether there was sufficient cause within meaning of Section 5 of the Limitation Act, because under the 1963 Act Section 5 does become applicable. Previously, in this State Section 5 was not applicable at all.

The applicant has to give an application for extension of the time giving certain reasons for extending the time and the Court has to apply its mind whether time should be extended and if the deposit is made subsequently, the applicant has to file an application u/s 5 of the Limitation Act explaining the cause as to why he failed to deposit the amount within the period of limitation the amount u/s 17 is to be deposited within 30 days or the security is to be furnished within the same period. The applicant cannot get liberty to deposit the amount at his own convenience or choice till the matter is taken up for decision on the application which may take several years.

In the present case, the Petitioner had filed an application to set aside ex parte decree on 18 3 1991. The decretal amount to be paid by this time was Rs. 7,142 and the Petitioner had not deposited any amount within 30 days. He had already deposited in suit Rs. 3.000 only. Subsequently, he deposited Rs. 2,000 on 20.5.1991 and after more than three years, just few days before disposal of the application he deposited Rs. 2,000 on 16.1.1995. He did not file any application to condone the delay in depositing the amount. There is no evidence on the record to justify the conduct of the Petitioner is not depositing the amount within the period of limitation.

Learned Counsel for the Respondent urged that by 16.1.1995 the decretal amount was Rs. 16,752 and the Petitioner should have deposited this amount much earlier but by this time he has deposited only Rs. 7,000. Proviso to Sub-section (1) of Section 17 of the Act contemplates deposit of the amount on the date the application is filed. The decretal amount is to be calculated on the date of filing of the application.

In Nakse Ram v. The Second Additional District Judge, Aligarh and Ors. 1992 (1) ARC 257, it was held that the applicant is required to deposit the security of the decretal amount which is payable upto the date of filing of such application. The Petitioner, however, having not deposited the amount within the period of limitation nor prayed for condoning the delay in depositing the amount after giving any explanation, he cannot be held to have complied with the provisions of Section 17(1) of the Act. The Petitioner further failed to deposit the entire, decretal amount as payable on the date of filing of the application till the date of disposal of the application. The Petitioner has deposited only Rs. 7,000 by the date of decision of the application on 4.2.1995. The decretal amount as payable on 18.3.1991, the date of filing of the application to set aside the ex parte decree was Rs. 7,142. It was short by Rs. 142.

Learned Counsel for the Petitioner submitted that he had further deposited Rs. 100 towards costs and that should be adjusted towards this amount. This amount deposited by the Petitioner was not towards decretal amount. The Petitioner had filed revision against the order rejecting his application in default. The revision was allowed on payment of the cost of Rs. 75. He did not pay the said amount and the Court extended the time for payment of the amount of cost on the condition that he deposits further Rs. 25. The Petitioner deposited Rs. 100 towards this cost and not towards decretal amount.

The Petitioner is seeking the indulgence of the Court on the legal maxim "de minimis non curat lex". He has placed reliance upon the decision Dullan Prasad Vs. Smt. Rajeshwari Bibi, , wherein it was held that if the security is furnished by the applicant which is little less than the decretal amount, but if it satisfies the Court no exception can be taken to any defect in the deposit of the cash security.

He has placed reliance, upon Mahanand Maheshwari and Anr. v. U.P. State Electricity Board, Lucknow and Ors. 1982 (2) ARC 41, wherein sum of Rs. 9,000 and odd was deposited at the time of filing of the application to set aside ex parte decree and later on it was found that it was short by Rs. 380.80 but after the decree no amount was deposited. It was held that the deficiency was made good at late stage and there was substantial compliance of the provisions of Section 17 of the Act.

In Mohan Lal and Anr. v. Additional District Judge, Nainital and Ors. 1981 ARC 121, Rs. 11,000 was deposited which was found short by Rs. 43.50. The Court reiving upon the decision in Dullan Prasad''s case (supra), held that there was a substantial compliance of Section 17 of the Act as there was no intention on the part of the applicant not to deposit the amount.

On the other than, learned Counsel for the Respondent relied upon the decision Ravi Shankar v. Vth Additional District Judge, Aligarh 1982 (2) ARC 101, wherein it was found that the deposit of the amount made by the applicant fell short by Rs. 107.05 but it was held that the applicants failed to comply with the provisions of Section 17 of the Act. The Court applies the legal maxim when it finds that the amount falls short on account of bona fide mistake or certain other reason which reflects bona fide on the applicant the Court has to satisfy itself regarding the circumstances under which the short fall has taken place. This may be considered when it affects the rights of the contesting opposite party substantially or it is only in relation to the procedural matter.

Their Lordships of the Supreme Court in Umesh Chand Gandhi Vs. Ist Addl. Dist. and Sessions Judge and Another, , laid down certain guidelines when this legal maxim is to be applied which reads as under:

It is settled law that the Courts of justice generally do not take triffling and immaterial matters into account except under peculiar circumstances. The strictness or harshness of inflexibility would lead to injustice or miscarriage of justice. Therefore, in working out equities, the Court would apply in general the maxim "de minimis non curat lex". The Division bench, therefore, fightly pointed out that the doctrine deserved extension giving the benefit to the tenant, but it is question of fact to be decided in each case. Bona fide mistake may occur in myraid circumstances but it depends upon each case. Neither rigid nor exhaustive nor inflexible rule could he laid cutting its amplitude into mathematical formula, in which event also it would lead to miscarriage or injustice. Accordingly, we find that the Division Bench has righdy left the question to the discretion of the Courts under the Act to consider in each case in the given facts and circumstances whether non compliance was bona fide and of the triffle, and then to grant relief accordingly.

The requirement of making deposit u/s 17(1) of the Act is a procedural part. The Court can take liberal view if the amount falls short than the amount required to be deposited under the said provision provided there is bona fide mistake or there are other relevant circumstances which justify the action of the applicant.

In the present case, it is urged that by the date of hearing of the application only Rs. 142 fell short which was required to be deposited u/s 17(1) of the Act. this amount can be treated as small and the Petitioner could have been entitled to the benefit of legal maxim ''de minimis non curat lex'' provided he had deposited the decretal amount by the date of filing of the application to set aside ex parte decree. As seen above, the total amount by the date of filing the application was Rs. 3,000. He further deposited sum of Rs. 2,000 after two months thereafter while the decretal amount was Rs. 7, 142 on the date of filing application, After about three years the Petitioner deposited Rs. 3,000 on 16.1.1995. Considering the fact that on the date of filing of the applicant8on the amount was short more than Rs. 2, 142, it cannot be taken that the decretal amount to be deposited was short only by Rs. 142. In these circumstances, he cannot get the benefit of the Rule of Legal maxim quoted above.

Learned Counsel for the Petitioner then urged that the provisions of Section 17(1) of the Act is only directory and not mandatory and even if the amount is deposited at any time the Court is not bound to reject the application on that ground. He has placed reliance upon the decision Suresh Chandra v. VIIth Additional District Judge, Muzaffarnagar and Ors. 1991 (2) ARC 545, wherein the Court held that use of the words "previous application" in Section 17(1) of the Act is directory. It was held that it was not necessary that before filing of the application u/s 17(1) of the Act, the applicant should have filed an application for furnishing the security or depositing the amount. The same view was expressed in Quazi Nemat Ullah v. VIth Addl. District Judge, Gorakhpur and Ors. 1993 (1) ARC 151 and it was held that if the application is filed for security or deposit of the amount along with an application to set aside the ex parte decree, the same is maintainable.

In these cases the Court was construing the words "on previous application made by him in this behalf. It was not held that compliance of Section 17(1) of the Act was not mandatory. It is settled law that compliance of Section 17(1) of the Act is mandatory.

In Dullan Prasad Vs. Smt. Rajeshwari Bibi, , Hon''ble R.B. Mishra, J. after considering the various decisions held that the compliance of Section 17(1) of the Act is mandatory and the requirements of Proviso to Section 17(1) of the Act is a condition precedent to the application for setting aside the ex parte decree. This view has been followed in Mohd. Islam v. Faqir Mohammad 1985 (1) ARC 54; Ram Chandra v. IXth Addl. District Judge, Varanasi and Ors. 1991(1) ARC 501; Purshotam v. Special Addl. Sessions Judge, Mathura and Ors. 1991 (2) ARC 129 and Ayodhya Prasad v. Krishna Autar 1992 (2) ARC 357.

The Courts below have found that the Petitioners had not complied with the provisions of Section 17(1) of the Act and this finding is not vitiated under the law. The Judge, Small Causes Court also found that the Petitioner had not given sufficient cause for appearance on 19.1.1991 and dismissed the application on merits and the Revisional Court could not have decided the question of fact in revision.

In view of the discussions made above, there is no merit in this writ petition. It is, accordingly, dismissed with costs.