JAGDAMBA PRASAD Vs. RAM DAS SINGH

JUDGEMENT

(1.) This is an application in revision under Section 25, Small Cause Courts Act. The applicants here were defendants in the Court below along with two others named Balli Singh and Bansidhar. The suit was based upon a sarkhat. It was alleged in the plaint that Balli Singh was the manager and karta of the family to which the defendants belong. Balli Singh is the father of the present applicant Ram Barai Singh and the brother of the other two applicants Jagdamba Prasad and Sita Ram Singh. Balli Singh admitted the execution of the sarkhat. The present applicants did not put in an appearance. The suit was decreed by the learned Small Cause Court Judge on 13 March 1936. The decree was personal against Balli Singh and against the family property so far as the other defendants were concerned. On 27 May 1941, an application was made by the present applicants under Order 9, Rule 13 for having the decree, dated 13 March 1936, set aside. It was alleged in the application that the applicants obtained knowledge of the decree on 9 May 1941. This application also contained a prayer for permission to deposit security instead of the decretal amount. No order was passed by the Court on this prayer. On 30 May 1941, another application was made for permission to deposit security and this application was accompanied by a security bond. The learned Small Cause Court Judge allowed this application and accepted the security bond. When the matter came up for argument it was contended by the opposite parties that the imperative provisions of Section 17, Small Cause Courts Act, had not been complied with and hence the application was not entertainable. The learned Small Cause Court Judge allowed this objection to prevail and dismissed the application; hence the present application in revision.

(2.) Upon the facts stated above, I am definitely of the opinion that the view taken by the learned Small Cause Court Judges is quite correct and there can be no reason for interference. The question which arises for consideration in this case has been fully discussed by me in two previous cases, namely, (1) Narain Das v. Mt. Radha Kuar reported in , and (2) Mohan Lal V/s. Sohan Lal, reported in . I have pointed out in these cases that, in my judgment, Section 17, Small Cause Courts Act, as amended by Act 9 of 1935 is mandatory in its provisions and it is therefore incumbent on a party seeking to have an ex parte decree set aside either to deposit the decretal amount at the time of presenting the application for setting aside the decree or to file security as directed by the Court upon a previous application made for that purpose. The learned Small Cause Court Judge has referred to the latter case in support of his order. The same view was taken by a Bench of the Lahore High Court in A.I.R. Mohammad Ramzan Khan V/s. Khubi Khan ( 38) 25 A.I.R. 1938 Lah. 18. I find further that the Oudh Chief Court placed the same interpretation upon the provisions of Section 17, Small Cause Courts Act, in two cases: one, Jagannath Prasad V/s. Sukhdeo Prasad, and the other, Mt. Shikhani V/s. Bishambhar Nath ( 41) 28 A.I.R. 1941 Oudh 103. In one of the Oudh cases reference has also been made to Hemibai V/s. Kishnibai ( 40) 27 A.I.R. 1940 Sind 105, decided by a Bench of the Judicial Commissioner's Court, Sind, in which a similar view was taken. Learned Counsel for the applicants had, however, relied upon three cases in support of his contention. The first one is that of Qabul Singh V/s. Jai Prakash, decided by Thorn C. J. and reported in . It would appear from the judgment of Thorn C. J. in that case that he had arrived at the conclusion that all that was necessary was a substantial compliance with the provisions of Section 17, Small Cause Courts Act, when one of my cases was put before him and he dismissed it with the remark that the interpretation which I had put upon Section 17 was in his opinion too narrow.

(3.) The second case is that of Kanna Karup V/s. Raman Nayar, reported in ( 43) 30 A.I.R. 1943 Mad. 51. In this case King J. referred to the case decided by me as well as the case decided by Thorn C. J., and observed that he would have been inclined to follow the view taken by Thorn C. J., though he decided the case on other grounds. So far as these two cases are concerned, I need only say that they do not discuss the provisions of Section 17, Small Cause Courts Act, and do not contain any reasons which would persuade me to alter or modify the view which I have taken. I have definitely held that the provisions of Section 17, Small Cause Courts Act, as amended leave no scope for any exercise of discretion by the Court and hence it is not possible to take a broad view as suggested by Thorn C. J. or King J. The view which I have taken may appear to be a technical or narrow view but upon the language of Section 17, as it stands, I maintain that it is the only possible view. The balance of authority is clearly in favour of the view which I have held and that is an additional reason why I see no ground for altering or modifying my view. The third case relied upon by learned Counsel for the applicants is Ram Dayal V/s. Bhagwan Das, decided by Collister J., and reported in . I do not find anything in this case to suggest that Collister J. differed from my interpretation of Section 17, Small Cause Courts Act. Upon the facts which he had to consider in that case he arrived at the conclusion that the provisions of Sec. 17 had been fully complied with. In that case two applications were made simultaneously, one for permission to deposit security and the other for setting aside the ex parte decree and it was admitted that the Court first took up the application for permission and allowed it. That case does not therefore militate against the view which I have taken. The result therefore is that I dismiss this application with costs.