PRABHU DAYAL Vs. DISTRICT JUDGE AND ORS.

JUDGEMENT

(1.) SUMMARY nature of jurisdiction exercised under Small Causes Courts Act coupled with harshness of requirement of depositing entire decretal amount before filing restoration application for setting aside ex parte decree and involvement of heavy stakes appears to have persuaded this Court even in thirties to construe Section 17 of the Act liberally and upheld even substantial compliance rather than adherence to form. Despite mandatory character of provisions to work as deterrent against non -appearance on date fixed by defendant or to delay proceedings by avoiding service Courts have been moved by innate sense of justice and insist on decision on merits after opportunity and contest rather than exparte Equity has been so dominant that erroneous and illegal order have been upheld in revision and the setting aside of restoration orders have not been normally, approved by this Court and Supreme Court. As far back as 1890 it was held by a Full Bench in Mohd. Baka v. Bahal Singh, I.L.R. XIII Alld. 277, that it was not intended by that Section (Section 25 of Small Cause Court Act) to give in effect a right of appeal in all Small Cause Court cases, either on law or fact. We think we should not interfere under the Act unless it is clearly established that some substantial injustice to a party in the litigation had directly resulted from a material misapplication of law of material error in procedure'. It was extended further in, Mohan Lal v. Sohan Lal : A.I.R. 1939 Alld. 177, in a case in which order of furnishing security was not complied yet the exparte decree was set aside. It was held that mere fact that an order passed by a Small Cause Court is either Illegal or without jurisdiction necessarily justified interference by this Court. The real test Is whether any substantial injustice has been done by the order complained against. Law having been construed thus what calls for determination in these two tenants' petitions is if the revising authority was justified in interfering with order setting aside exparte decree because the order was not reasoned, there was non -compliance of Section 17 of the Act and security furnished was invalid for want of registration. Undoubtedly each of these reasons have been accepted as conferring jurisdiction on revisional court to interfere u/s. 25 of the Actyet it has to be examined if the order suffers from manifest error of law because the revising authority was under misapprehension of fact and even if it was not should the order restoring suit have been interfered even though the petitioners had substantially complied with Section 17 of the Act and in any case by setting aside of exparte decree no injustice was being done to opposite party. It cannot be disputed that while disposing of an application for setting aside exparte decree the Court or authority has to apply its mind to sufficiency of reason, for being absent on date of hearing. In absence of any finding on it the order is certainly bad. As order XX rule 4 C.P.C. does not dispenses with mentioning concise statement of the case yet it requires the Court to mention the points for determination and reasons thereon. In absence of reason the order is rendered invalid That the trial Court's order suffered from this infirmity admits of no doubt. But the proper course for revising authority was to remand it. It should have avoided recording findings as in assuming role of fact finding authority it committed error in presuming that there was no evidence to rebut the presumption which arose due to affidavit filed by process -server and supported by affidavit of opposite party that petitioner had refused to accept summon. In fact petitioners had filed affidavits stating on oath that no summons were served and they never refused to accept it. it could not be ignored. Affidavit of process server raised a prima -facie presumption but once it was disputed by filing affidavit then it had to be decided as a fact whether service was effected or not. In ignoring petitioner's affidavit under impression that petitioner had not filed any evidence the revising authority committed error apparent on face of record.

(2.) BUT what impressed the revising authority most against petitioners was furnishing of security on 7th July when application for restoration was filed on 3rd July. The exparte decree had been passed on 1st June, And as security was not furnished on 3rd July the day on which application had been filed after reopening of Courts after vacation it was barred by time. Although observation was made that entire decretal amount including cost and interest should have been deposited but no finding was recorded if the security furnished was sufficient or not therefore, it was of no consequence. And rejection of application as barred by time was contrary to the settled view of this Court that what is of prime importance is moving of application within time. And if that is done as it was done in this case then, it is well settled that, 'if two conditions (direction of the Court for furnishing security and its furnishing) are not fulfilled at the same -time, when the application was actually presented, there would be substantial compliance with the provision' to Section 17 Ram Pyare v. Budh Sen : A.I.R. 1977 Alld. 15 Reason for construing the provision thus is not a latitude to mover of application under Sec. 17 but pragmatic approach to the requirement of complying with it by depositing or furnishing security in compliance to Courts order at the time of moving application for review or setting aside exparte decree, Furnishing of security is contemplated on a direction by Court on a previous application. In other words the Court has to first apply its mind to sufficiency of security then direct the applicant to deposit the same. It may be simultaneous or after verification or satisfaction. Therefore, time which is or may be taken by Court cannot work against applicant. Fling of application, therefore, was substantial compliance of provision of Section 17 and the delay if any was not due to fault of petitioners bat inherent in the nature of performance which could not entail dismissal of application. Revising authority, therefor, committed error of law in rejecting the application on this ground.

(3.) EVEN assuming illegally and error in order of trial Court in setting aside exparte decree the revising authority should not have interfered on ratio laid down by Supreme Court in Ramji Das and others v. Mohan Singh, 1978 A.R.C. 496.