V M ASSAN MAHOMED SAHIB Vs. MERAHIMAN SAHIB

JUDGEMENT

(1.) The corresponding provision in the earlier Act XI of 1865 was enacted as a proviso to Section 21, which, after enacting that all decrees and orders of the Court should be final and making provision for setting aside ex parte decrees and also for granting new trials in other cases, expressly provided that no such new trial should be granted to a defendant "unless he shall with his notice of application deposit in Court the amount" etc. Under this section there was clearly no jurisdiction to grant a new trial unless the proviso had been complied with in terms. Under that Act the procedure in these Courts was governed by rules made by the High Court under Section 46, but by Section 5 of the Code of Civil Procedure of 1877 the sections of the Code set out in the second schedule were applied to Small Cause Courts, so far as applicable. The sections so applied included the sections dealing with applications to set aside ex parte decrees and applications for review, and it was therefore only natural that the proviso now in question should appear in the present act as a proviso to Section 17 which again expressly provided that Small Cause Courts should follow the procedure prescribed in the chapters and sections of the Code of Civil Procedure specified in the second schedule. This re-arrangement necessitated some alteration in the language of the proviso, but that alternation in my opinion affords no ground for attributing to the Legislature an intention to modify the clearly mandatory nature of the earlier enactment, more especially as the new proviso is expressed in terms which are prima facie mandatory and have been so construed by the other High Courts. There are no doubt some English decisions in which the Courts have found indications in the particular enactments that provisions in form mandatory were only intended to be directory, but having regard to the history of the section there is in my opinion no room for any such conclusion here. In Ramasami v. Kurisu (1890) I.L.R. 13 Mad. 178 Parker, J. no doubt stated that he was disposed to hold that Section 17 was merely directory and not mandatory and went on to observe:- "The Court did require the costs to be deposited before the review was heard, and this, I think, is the intention of the section."

(2.) With all respect this appears to me to be importing into the section a new mandatory provision not to be found there. It does not appear from the report in that case whether the time prescribed in- the Limitation Act for making an application under Section 17 had expired when the costs were deposited. In Jeun Muchi v. Budhiram Muchi (1904) I.L.R. 32 Cal. 339 where the application was made without making a deposit or giving security, it was held by Brett and Mookerjee, JJ., that, if the requirements of the section were complied with within the period prescribed for such applications in the Limitation Act, it might be treated as sufficient as no objection could have been taken if a fresh application had been presented when security was deposited. I think that this interpretation of the requirements of the section may well be followed, having regard to the practice which has prevailed in this Presidency, and would answer accordingly that the provision in question is mandatory, but is sufficiently complied with by satisfying the requirements of the section before the time prescribed for such applications in the Limitation Act has elapsed. Oldfield, J.

(3.) I entirely agree and add only that the interpretation we are adopting is consistent with the object of the Provincial Small Cause Courts Act, the provision of a simple fixed procedure for the cheap and expeditious disposal of petty claims. Seshagiri Aiyar, J.