Allahabad High Court
Suresh Chand vs Vii-Additional District Judge, ... on 21 October, 1991
Equivalent citations: AIR1992ALL295, AIR 1992 ALLAHABAD 295, 1992 (1) ALL CJ 119, 1992 ALL CJ 1 119, (1992) 19 ALL LR 77, (1992) 1 ALL WC 40
ORDER
1.This is a tenant's writ petition. Respondent No. 3 filed a suit for ejectment on the ground of default. Notices were issued to the defendant but he did not put in appearance. The suit proceeded ex parte. Subsequently it was decreed on 14-1-1987.
2. The petitioner came to know of the said decree on 27-1-1987. The relevant record was got inspected the same day. He filed an application under O. 9, R. 13, C.P.C. along with an affidavit for setting aside the ex parte decree on 28-1-1987. Thereafter, he moved an application under S. 17 of the Provincial Small Cause Courts Act (in short 'the Act') praying that he may be permitted to furnish the personal security.
3. The court allowed the application under 0.9, R. 13, C.P.C. on 13-3-1987 holding that there was no personal service on the defendant. The application under S. 17 of the Act was also allowed. The personal security was accepted. The order dated 23-9-1986, to proceed ex parte and ex parte decree dated 14-1-1987 were set aside on payment of cost.
4. Against the said order the respondent No. 3 filed a revision before the learned District Judge. It was allowed. The orders of the trial court allowing the applications under O. 9, R. 13, C.P.C. and S. 17 of the Act were set aside. The ex parte decree revived. The present writ petition is directed against the said order.
5. Heard Sri Ravi Kiran Jain, learned counsel appearing on behalf of the petitioner and Sri Rishi Ram, Senior Advocate, appearing on behalf of the respondent.
6. The main question to be considered in this case is about the scope of Section 17 of the Provincial Small Cause Courts Act. It provides the procedure to be followed in disposing of the application for setting aside the ex parte decree. According to it at the time of presenting the application for setting aside the ex parte decree the defendant may either deposit in 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 of the judgment as the court may, on a previous application made by him in this behalf, have directed.
7. It further provides that before filing an application under O.9, R. 13, C.P.C. the defendant has to file an application under S. 17 of the Act and necessary compliance of the same has to be done before the application for setting aside the ex parte decree is allowed. According to the learned counsel for the respondent this was not done. The ex parte decree could not be set aside.
8. In support of his contention he has relied upon a decision reported in (1979 All CJ 149 : (AIR 1979 NOC 112) Sharif v. Suresh Chandra. After going through the same I find that the scope of S. 17 of the Act has not at all been considered. On the contrary in a case reported in (1988) 2 All Rent Cas 362 : (1988 All LJ 1074) Khursheed v. I-Additional District Judge, Moradabad, this Court took the view that the application for furnishing security under Section 17 of the Act could be filed even after filing of the application under Order 9, Rule 13, C.P.C. The application for setting aside the ex parte decree could not be dismissed on the ground that it was filed before filing of the application for furnishing security under Section 17 of the Act. The Court has given good reasons. I am inclined to follow the view taken in the case of Khursheed (supra),
9. 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.
10. 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. Reference may be made to a case reported in AIR 1983 SC 355, Bhagwan Swaroop v. Mool Chand.
11. The provisions of Section 17 of the Act are only procedural. The Legislature intended that when an ex parte decree is sought to be set aside the judgment-debtor should deposit the decretal amount either in cash or to give security for performance of the decree. It is only to protect the interest of the decree-holder. If the contention of the learned Counsel for the respondent is accepted that would frustrate the object of Section 17 of the Act itself. The use of the word "previous application" is only directory and not mandatory. The only duty cast upon the Court is to ensure, that on the date of allowing the application under Order 9, Rule 13, C.P.C. the entire decretal amount has been deposited or the security has been furnished for the performance. Thus I am of the view that it was not necessary that the application under Section 17 of the Act may be filed first to be followed by the application under Order 9, Rule 13, C.P.C.
12. The next point raised by the learned Counsel for the respondent was that the security being unregistered could not have been accepted by the trial Court. There is nothing on the record to show that the security related to any immovable property. Had it been so then it needed registration. No such objection was raised before the trial Court. It is a clear indication that the security was only personal.
13. The learned Counsel for the respondent has referred to a decision reported in 1983 All U NOC 19, M. P. Patil v. Methodist Church in Southern Asia and the Methodist Episcopal Church in Southern Asia, Bombay. In that case security was personal as well as of immovable property. The Court took a view that it needed registration because part of the security related to immovable property. The learned Counsel has failed to show that any immovable property was also involved in the security in the instant case. Accordingly, I find that this case has no relevance.
14. In another case reported in (1985) 1 All Rent Cas 124 : (1986 All LJ 342), Lala Ram alias Ram Dhani v. Arjun Das, the Court took the view that the security bond did not require any registration when the property hypothecated by that bond was only moveable.
15. In the case reported in (1983) 1 All Rent Cas 757, Prabhu Dayal v: District Judge, Saharanpur, the 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, in spite of the fact that it was unregistered, such an order should not be disturbed. Relying upon this case, I reject the contention of the learned Counsel regarding acceptance of the security. .
16. The second point to be considered in this case is whether the revisional Court could have upset the finding of the trial Court about service of the notice by entering into the question of fact and record its own finding,
17. A Division Bench of this Courf in a case reported in 1979 All CJ 473, Laxmi Kishore v. Hari Prasad Shukla had an occasion to consider the scope of Section 25 of the Act. It was held that the revisional Court had no jurisdiction to reassess or re-appriase the evidence in order to determine the issue of fact itself. If it cannot dispose' of the case adequately without finding on a particular issue of fact it should send the case back after laying down proper guidelines. It cannot enter into the'evidence, assess it and determine the issue of fact.
18. Similar views have been taken in the cases reported in 1985 (UP) RCC 230, Mahant Girija Shankar Das v. The State of Uttar Pradesh and 1985 (UP) RCC 417: (1985 All LJ 1188), Smt. Indramukhi Varma v. The Additional District Judge, Farrukhabad.
19. Since the revisional Court itself has entered into the question of fact and recorded its own finding that the notice was served on the defendant, the order became vitiated. The revisional Court has erred in the exercise of jurisdiction vested in it. The impugned order suffers from error apparent on the face of the record.
20. In the result, the writ petition succeeds and is allowed with costs. The order of the revisional Court dated 25-8-1987 is set aside and that of the trial Court dated 13-3-1987 is restored.
21. Petition allowed.