KANGLOO MEGHNATH SONAR Vs. NEMICHAND KUNWARLAL OSWAL

JUDGEMENT

(1.) THIS is an application for revision by the plaintiff under Section 25, Provincial Small Cause Courts Act, against the lower Court's order setting aside the ex parte decree which had previously been made. The application for setting aside the ex parte decree had to be made and was made by the defendant who is the non-applicant here under Order 9, Rule 13, Civil P.C., read with Section 17, Provincial Small Cause Courts Act. The lower Court found that there was sufficient cause for the defendant's failure to appear when the suit was called on for hearing and accordingly made an order setting aside the ex parte decree. That finding has been contested before me by the learned Counsel for plaintiff-applicant, Mr. G.R. Deo, but I think it is pre-eminently reasonable and must be accepted. Certain amount of indulgence has to be allowed to parties in order to enable them to fetch their counsel to the court room from the other parts of the premises and in the particular circumstances of which the lower Court was the best judge, it does not appear that the same had been exceeded or misused. I hold that there was sufficient cause for the defendant's failure to appear when the suit was called on for hearing.

(2.) THE learned Counsel for plaintiff-applicant contends that the security given by the defendant did not answer the requirements of the proviso to Section 17(1), Provincial Small Cause Courts Act, arid that the lower Court had therefore no power to set aside the ex parte decree. But before I enter upon an examination of that contention I have to dispose of one argument which has been urged by Mr. P.R. Padhye for the defendant-non-applicant and which was to the effect that even if that contention was sound I cannot and must not interfere with the lower Court's order setting aside the ex parte decree. There I do not agree. In this connexion Mr. Padhye relied on Edu v. Hira Lal A.I.R. 1928 Oudh. 488, Mahabir v. Sheo Seran A.I.R. 1936 Oudh. 407 and Din Mohammad v. Darbarilal which are however all clearly distinguishable as would appear from the sequel. I must therefore proceed to consider the contention set out above which has been raised for the plaintiff-applicant. The contention is in two alternatives and is to the effect (1) that the proviso in question requires security, to be given by the defendant for the performance of the decree which might ensue upon retrial; (2) that the words of restriction, which security bond employs, not being authorised by the proviso reduce it to a nullity. The critical passage in that bond according to the plaintiff-applicant is: Dava maikharch mublig 391-8-0 ta faisala mukadma apne ghar gharane wo jaydad mankulase hartarah dendar rahunga, and particularly the words which I have underlined (here italicized).

(3.) I shall now turn to the question of construction of the security bond and in particular the words 'ta faisala.' These were also the words used in the security bond which Bose J. was called upon to interpret in the case reported in Dawood Haji Ibrahim v. Ramprasad Ganga Prasad A.I.R. 1938 Nag. 75 and he held that those words could make no difference and that the bond must be construed in the, light of the order directing the security to be given. In the present case the defendant in para. 2 of the application dated 2nd February 1942 offering security states as follows: That the applicant has applied for the setting aside ex parte decree and as required by law he wants to furnish security for the due performance of the decree under Section 17, Small Cause Courts Act. Prays therefore that he be allowed to furnish security for the decretal amount and costs and Nazir be asked to verify the same.