MOHAN LAL Vs. SOHAN LAL

JUDGEMENT

(1.) This is an application in revision under Section 25, Small Cause Courts Act. The applicant here was the plaintiff in the Court below. He instituted a suit on 4th March 1937 against the opposite party Sohan Lal to recover a certain amount on the basis of a running account. The opposite party filed a written statement on 14 July 1937 and the case was fixed for final hearing on 26 November 1937 after some adjournments in the meantime, for certain reasons with which this Court is not concerned. On that date it appears that an issue was framed in the case and the plain, tiff was examined. The case was then adjourned to the next day, that is 27 November 1937, and on that date the evidence of the plaintiff and of a witness produced by him was recorded. The opposite party and his counsel were admittedly present on 26 November 1937; but, on the next day when the case was called up no one appeared on behalf of the opposite party, with the result that the Court proceeded to pass an ex parte decree. It appears that immediately afterwards the opposite party appeared in Court and made an application purporting to be under Section 151, Civil P.C. praying for an order to set aside the ex parte decree. No cash deposit was made when this application was presented, nor was any security filed in accordance with the direction of the Court upon a previous application as required by Section 17, Small Cause Courts Act.

(2.) It is evident that in the circumstances in which the application was made the provisions of Section 17 could not possibly have been complied with immediately. The Court treated this application as one under Order 9, Rule 13 for an order to set aside the ex parte decree, and the opposite party was asked to explain why he had failed to carry out the provisions of Section 17. The matter came up before the Court on 16 December 1937 and the learned Small Cause Court Judge directed the opposite party to furnish a personal bond. It was contended by the learned Counsel for the applicant that all this proceeding took place without any notice having been given to his client. But it appears from the record that the applicant's counsel was present when the opposite party made his application on 27 November 1937 immediately after the passing of the ex parte decree. It appears farther that the application was immediately shown to the applicant's counsel who put his signature thereon apparently in token of the fact that he had received notice of it. On 20 December 1937, the learned Small Cause Court Judge accepted the security bond filed by the opposite party and fixed 6 January 1938 for hearing the application for restoration of the sit and wetting aside of the ex parte decree. The case was however taken up on 3 December, though the reason for this change in date does not appear from the record. On that date the learned Small Cause Court Judge granted the application and sot aside the ex parte decree. Hence this application in revision.

(3.) The learned Counsel for the applicant strenuously argued that the whole procedure adopted by the learned Small Cause Court Judge in this case was irregular, and particular stress was laid upon the point that he had no jurisdiction to entertain the opposite party's application for an order to set aside the ex parte decree when the mandatory provisions of Section 17, Small Cause Courts Act, relating to the deposit of security had not been complied with. The argument on behalf of the opposite party is that the provisions of Section 17, Small Cause Courts. Act, were substantially complied with because security was deposited by the opposite party in accordance with the Court s, direction, within the period of limitation. Reliance was placed in support of this contention on certain decisions of this Court, dealing with Section 17 of the Act prior to its amendment by Act No. 9 of 1935. The material portion of Section 17 as it stands after the recent amendment runs as follows: Either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made in this behalf, have directed.