ZAFAR UDDIN AHMAD Vs. L MADAN MOHAN

JUDGEMENT

(1.) This revision application is directed against an order of the learned Judge, Small Cause Court. Moradabad, dismissing an application for setting aside an ex parte decree. The ex parte decree in question was passed by that Court on 2-6-1953. On 6-7-1953, the defendant applicant moved an application for a direction from the Court permitting him to furnish security through a personal surety bond for the entire decretal amount. At the same time, he presented an application for setting aside the ex parte decree supported by an affidavit as also a personal surety bond for the entire decretal amount. On 9-7-1953, the Court made an order "allowed" on the application of the applicant to permit him to furnish security in the form of a personal surety bond. On the 14th of July, the applicant deposited Rs. 9/- and odd in cash in the court apprehending that the surety bond furnished by him may not be considered as covering the entire decretal amount which was in excess of Rs. 1000/- to that extent After that deposit, the security furnished was verified and was finally accepted by the court. Subsequently, the plaintiff-opposite party objected to the maintainability of the application for setting aside the ex parte decree on the ground that the applicant had failed to comply with the requirements of the proviso to Section 17 of the Provincial Small Cause Courts Act. This objection was accepted by the learned Judge, Small Cause Court, and the application for setting aside the ex parte decree was dismissed. It is against this order that the present revision has been filed.

(2.) The revision came up before a learned Single Judge of this Court who felt that the question relating to the interpretation of the proviso to Section 17 of the Provincial Small Cause Courts Act was an important question of law which should be considered by a Division Bench and consequently, the case has come up before us for decision.

(3.) In deciding this revision, the point, that has to be kept in view, is that, so far as the applicant is concerned, he at least did within the period of limitation all that he was required to do in order to present the application for setting aside the ex parte decree so as to make it proper and maintainable. The application for setting aside the ex parte decree had to be made within a period of 30 days from the date of the ex parte decree. That date fell within the civil court vacation when the Small Cause Court was closed. The vacation was followed by a Sunday which fell on 5-7-1953. and the first working day after the vacation was 6-7-1953. On that day, the applicant moved the application seeking a direction from the court to permit him to furnish security in the form of a personal surety bond. Further, on the same day, he moved an application praying that the ex parte decree be set aside and he also at the same time furnished a surety bond. Thus all that he was required to do was done by him. The court, however, did not on that day pass orders on any of the applications and thus omitted to make a direction either permitting the applicant to furnish security or, in the alternative, rejecting his prayer so as to leave no option to him except to deposit the decretal amount in cash witbin the period of limitation. Therefore, the applicant remained in suspense and it was after the period of limitation had expired that the court, on 9-7-1953, passed orders permitting the applicant to furnish security in the form of a personal surety bond. It has been urged before us that, under the proviso to Section 17, it was necessary that the applicant should not only have made the application for a direction from the court to be permitted to furnish security hut should also have obtained such a direction from the court before presenting the application for setting aside the ex parte decree so that the application for setting aside the ex parte decree could not have been presented validly after 6-7-1953, and, since up to that date, he did not obtain a direction from the court permitting him to furnish security, his application tor setting aside the ex parte decree, presented on that day, was incompetent. It was further urged that, if at all, it could become a competent application only after the court's direction had been obtained which happened on 9-7-1953 and, if that application be treated as a competent application on 9-7-1953, it is barred by limitation. This argument is based on the interpretation of the proviso to the effect that the language used therein requires that a person moving an application for setting aside an ex parte decree must not only make an application tor being permitted to give security prior to moving the application for setting aside the ex parte decree but must also obtain the order of the court prior to making that application. It has appeared to us that the actual language used in the proviso need not necessarily be interpreted so strictly as to lead to this result. Under the proviso, there certainly has to he a previous application seeking a direction from the court permitting the person making the application to give security and it is only after such previous application has been made that a competent application for setting aside an ex parte decree can be validly presented. Thereafter, the proviso lays down that the security must bo furnished at the time of presenting an application for setting aside an ex parte decree in accordance with the directions which the court may have given. In fact, the language is in the form that "the person must give such security as the court may have directed." The use of the expression "may have directed", it is urged, indicates that the direction of the court must be prior to giving of security and, since it has to be given at the same time as the application for setting aside an ex parte decree, the direction of the court must be prior to moving of the application also. No doubt, the language in this form does lead to this interpretation, but there is another aspect which needs to be considered. As we have indicated earlier, the word "previous" has been used in this proviso before the word "application" which refers to the application for obtaining a direction from the court permitting furnishing of security instead of depositing cash. The use of this word "previous" before the word "application" indicates that the Legislature in this proviso was laying emphasis on its intention that the application for a direction from the court should precede the application for setting aside an ex parte decree. At the same time, of course, the Legislature also laid down that such security should be given as the court may have directed. Grammatically, of course, this expression would also indicate that the direction should precede the furnishing of the security and, consequently, should also precede the presentation of the application for setting aside an ex parte decree as that application and the furnishing of security have to be simultaneous, If this interpretation is accepted, it would mean that the use of the word ''previous" before the word "application" referring to the application for obtaining a direction of the court for furnishing security is redundant because that application must necessarily precede the direction of the court and, if the direction of the court is itself to precede the making of the application for setting aside an ex parte decree, it would be unnecessary to say that the application for the direction should be a previous application. In fact, it appears to us that, if the intention of the Legislature had been that the direction of the court itself should be previous to the application for setting aside an ex parte decree, the word "previous" should not have been used before the word "application" and would have been more properly used as a qualifying adverb by introducing the word "previously" between the word "have" and the word "directed". In case the word "previously" had been introduced at this place in this proviso, the proviso could not possibly be interpreted in any other manner except that the direction of the court must be obtained previous to the application for setting aside an ex parte decree and. in that case, there would have been no necessity for saying that the application for obtaining a direction for furnishing security should be a previous application, as a direction on an application can only be made if that application for direction is previous to the direction itself. The use of the adjective "previous" before the word "application" instead of the adverb "previously" before the word "directed" thus seems to indicate that the Legislature really intended to lay emphasis on the fact that the application for a direction should be previous to the application for setting aside an ex parte decree and the expression "the court may have directed" was possibly used because of the view that a direction given even subsequently would date back to that application praying that a direction be made. It also appears to us that this interpretation that the application for a direction should be previous to the application for setting aside an ex parte decree and that the direction of the court itself need not be previous also is one which, in addition to being possible on the language of the proviso, as discussed above, would be in line with principles of interpretation which lay down that a statute should, be so interpreted as to avoid defeat of rights of any party for no fault of his own. In the present case, the applicant did every thing that he was required to do within the time allowed by law and yet his application for setting aside the ex parte decree had been dismissed as time-barred merely because the court omitted to make a direction on the very day on which the application for the direction was made. It has also to be noticed that the applicant, because of the intervention of the vacation, could not be expected to move his applications until 6-7-1953, which was the last day of limitation. In a case like the present one, the interpretation that the direction should also be prior to the making of an application for setting aside an ex parte decree necessarily acts to the prejudice of the applicant and his option to furnish security instead of depositing any cash is taken away by mere omission of the court to make a direction even though the subsequent orders of the court show that such a direction was appropriate and was actually made by the court subsequently. On the other hand, if we accept the interpretation that the direction of the court itself need not be prior to the application for setting aside an ex parte decree, or. in the alternative, if a direction is made subsequently, it would date back to the previous application for a direction, no such cases of hardship would arise where a party's right may be lost due to delays by court in spite of that party having done all that he was required to do within the time allowed by law. For these reasons, we are inclined to accept this interpretation even though there are remarks in various reported decisions which proceed on the bask that this interpretation of the proviso will not be correct. We. however, feel that in this case, it is not essential for us to decide this point finally because we are also inclined to the view that even if the other interpretation be accepted as correct, in cases of this nature, where hardship arises due to omission by the court to act within time, the appropriate course for the court would be to exercise its inherent powers under Section 151 of the C. P. C. to mitigate the hardship when the court subsequently finds that it was a fit case where security should be furnished and that security had been furnished within the period of limitation. At the same time, when the application for setting aside the ex parte decree was made, the court should not have made the applicant suffer for no default of his own. In this connection we may refer to the remarks of two learned Judges of this Court who were members of a Full Bench which decided the case of Ram Bharose v. Ganga Singh, AIR 1931 All 727. Mukerji, J. in dealing with the interpretation of the proviso to Section 17 of the Provincial Small Cause Courts Act, as it stood before its amendment in 1935, envisaged cases where hardship may occur similar to the one which has arisen in the case before us and remarked.