CHANDULAL Vs. MOTILAL BANSILAL

JUDGEMENT

(1.) SUBHEDAR , A.J.C. 1. The plaintiff had sued the defendant in the Small Cause Court, Akola, to recover damage in respect of forcible removal by the defendant of certain bags of grain belonging to the plaintiff. The defendant through Mr. Chandorkar, pleader, contested the suit. On 20th January 1928 certain witnesses were examined including the defendant and case was adjourned to 17th April 1928 at the request of the parties for further evidence. On 17th April 1928 the defendant and his pleader both remained absent and for want of time the case could not be taken up that day or even the next day. On 19th April 1928 plaintiff examined 3 witnesses and closed the case, the defendant remaining absent. Judgment was delivered on 23rd April 1928 against the defendant. On 25th April 1928 the defendant filed an application for setting aside the ex parte decree, but gave the necessary security required by Section 17, Provincial Small Cause Courts Act on 23rd June 1928 when notice was issued to the plaintiff to show cause against the application.

(2.) IN showing cause the plaintiff's pleader stated that inasmuch as no security was given by the applicant at the time when he presented the application, the ex parte decree could not be set aside. It was also stated that on the merits the application was also untenable. The lower Court upheld both the contentions of the plaintiff non-applicant and dismissed the application. The defendant has, therefore, come up to this Court in revision. It is contended by the applicant's learned pleader that the proviso to Section 17, Provincial Small Cause Courts Act is directory and the Courts have got full discretion in allowing the security to be taken at any time before the application is heard and disposed of. But as far back as 1905 it was held by this Court in Umrao Jiwan v. Mannumain [1902] 2 N.L.R. 23 that the aforesaid proviso was mandatory and that it is a condition precedent to the granting of a new trial that the applicant should, when presenting the application, either deposit the amount or give security. The same view has been followed in Calcutta, Allahabad, Bombay, Madras, Patna and Upper Burma: Jogir Ahir v. Bishen Dayal [1891] 18 Cal. 83, Jagan Nath v. Chet Ram [1906] 28 All. 470, Chhotey Lal v. Lakhmi Chaud Magan Lal [1916] 38 All. 425, Somabhai v. Wadilal Assan Mohamed Sahib v. Rahim Sahib [1920] 43, Mad. 579, Ram Charitar Ram v. Hakim Khan [1920] 1 Pat. L.T. 323, Bishun Dayal v. Sheo Tahal Sahu [1921] 62 I.C. 108 and Ram Bilas Tarbeni Bam v. Jai Singh A.I.R. 1922 U.B. 18.