BINODE BEHARI SAHA Vs. NITYA GOPAL SHAHA

JUDGEMENT

(1.) This appeal by special leave arises from the judgment of the High Court dated June 10, 1977 in Civil Revision No. 396 of 1974.

(2.) A short question has been raised in this appeal for our consideration: whether the application for setting aside the ex parte decree passed by the Small Cause Court filed within time but the security bond furnished beyond the period of limitation, it will be deemed as due compliance of the proviso to sub-section (1) of section 17 of the Provincial Small Cause Court Act? Along with this another short question has been raised is, whether the Small Cause Court has the power to grant time for filing security bond beyond the period of limitation for setting aside the exparte decree.

(3.) Facts in short are that the appellant instituted Small Cause Court Suit No. 5 of 1973 for ejectment of the respondent from the suit premises describing the respondent as an ordinary ejectable monthly tenant at a monthly rental of Tk. 40/-. The suit was instituted after determining the tenancy by serving a notice under section 106 of Transfer of Property Act. The respondent filed written statement denying the claim of the appellant but he ultimately did not appear on the date of hearing of the suit on 12-9-73 when the suit was decreed ex parte. Thereafter, on 15-9-73 the respondent filed an application under Order IX, rule 13 read with section 151 of the Code of Civil Procedure for restoration of the suit on setting aside the exparte decree. He also filed a petition praying for time for furnishing required security bond. The learned S.C.C. Judge allowed time to the respondent to furnish the security bond by 25-9-73 and fixed 14-11-73 for return of the service of notice in the Miscellaneous Case. The respondent neither filed the security bond nor took any step in the matter and, as such, the learned S.C.C. Judge fixed 3-11-73 for order. The respondent having failed to take steps by the date fixed, the learned S.C.C. Judge fixed 24-11-73 for show-cause by the respondent as to why the Miscellaneous Case should not be rejected on account of his default to furnish the security bond. The respondent, however, filed the necessary security bond on 24-11-73. He also filed an application showing the cause of delay in furnishing the security bond, and along with it he filed an application under section 5 of the Limitation Act for condonation of delay. The appellant filed an application supported by an affidavit for rejection of the application of the respondent. The learned S.C.C Judge heard the Miscellaneous Case No. 524 of 1973 along with the application under section 5 of Limitation Act and rejected the said application and dismissed the Miscellaneous Case on 10-1-74. In revision at the instance of the respondent the learned Single Judge of the High Court by his judgment dated June 10, 1977 set aside order of the S.C.C. Judge and directed the trial Court to accept the security bond and to proceed with the Miscellaneous Case according to law.