Bhagwan Dass Arora Vs. First Addl.
Distt. Judge, Rampur [1983] INSC 85 (25 July 1983)
DESAI, D.A.
DESAI, D.A.
MISRA, R.B. (J)
CITATION: 1983 AIR 954 1983 SCR (3) 493 1983
SCC (4) 1 1983 SCALE (2)40
ACT:
Provincial Small Cause Courts Act,
1887-Proviso to s. 17(1)-Surety Bond-Whether governed by Art. 6 of Schedule 2
of the Court-fee Act or Art. 57 of the Indian Stamp Act- existing conflict of
opinion between Madras and Calcutta High Courts-Left unresolved. Surety bond,
furnished on Court-fee of Rs. 2, found not duly stamped-Requisite stamp under
the Indian Stamp Act supplied. In this situation by preferring one view to the
other a litigant cannot be thrown out of the court.
HEADNOTE:
In compliance with the orders of the court
under the proviso to s, 17(1) of the Provincial Small Cause Courts Act the
appellant, against whom an ex-parte decree had been passed, filed within the
period of limitation a surety bond for a certain amount. The surety bond was
stamped with a court-fee of Rs. 2. After an application under order 9, r. 13 of
the Code of Civil Procedure for setting aside the ex- parte decree was filed by
the appellant the court, on a report from its Munasarim that the surety bond
was not duly stamped, directed the appellant to furnish the requisite stamp
within a week. The appellant supplied requisite stamps for the bond as required
by the provisions of the Indian Stamp Act. The trial court dismissed the
application on the ground that on or before the date of its filing the
appellant had failed to furnish surety bond duly stamped and the surety bond
furnished by the appellant on a court-fee stamp of Rs. 2 being not a legal
document, there was non- compliance with the proviso to s. 17(1) After an
unsuccessful revision petition to the District Judge the appellant filed a
petition under Art. 227 in High Court.
After having noticed the conflict of opinion
between the Madras and Calcutta High Courts, a single Judge of the High Court
dismissed the petition and held that the surety bond must be duly stamped as
required by the Indian Stamp Act.
Allowing the appeal,
HELD: In the situation of this case the
litigant cannot be visited with the consequence of being thrown out of court
and shutting the doors of justice in his face. [498 E] The preferences of Judges
should not be allowed to work hardship on litigant in respect of a procedural
provision Justice cannot be a playground by kicking the ball from one court to
other depending upon which of conflicting views will ultimately prevail leaving
a litigant on the tenterhooks and ultimately to be told that he acted according
to the view taken by a Pull Bench of a.
494 High Court which did not find favour with
the learned Single Judge of the High Court of the State in which he resided.
This is not justice. This is legalese which
ought to be avoided. [498 G-H, 499A] In the instant case what horrible
agonizing situation, the appellant faced cannot be guaged. He had produced the
surety bond on the first day duly stamped as then advised.
And had the learned Single Judge preferred
the Madras view which required that it should be stamped with court-fee stamp,
the appellant was fully protected. To his utter misfortune, the Calcutta view
found favour with the learned Single Judge and the appellant suffered the
irremediable consequence of this later day preference. [498 E-F]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 2982 of 1983.
Appeal by Special leave from the Judgment and
order dated the 9th April, 1982 of the Allahabad High Court in Civil Misc. Writ
No. 1907 of 1980.
Mrs. Urmila Kapoor, Miss Shashi Kiran and
Miss Nishi Puri for the Appellant.
KK Gupta for Respondent No. 3. A.G.
Ratnaparkhi for Respondent Nos. 4 & 6.
The Judgment of the Court was delivered by
DESAI, J. Third respondent Smt. Savitiri Devi filed a small causes case No.
43/76 in the Court of Civil Judge, Rampur designated as Court of Small Causes
for recovering arrears of rent, electricity charges etc. in respect of House
No. 368 situated in Adarsh Colony, Civil Line, Rampur against the present appellant.
On service of the summons, the appellant appeared and contested the suit by
filing his written statement. The suit came to be adjourned for hearing to
August 6, 1977. On that day, the appellant and his advocate were absent and the
suit was decreed ex parte. On August 8, 1977, appellant appeared and moved an
application under the proviso to s. 17 (1) of the Provincial Small Cause Courts
Act, 1887 ('Act' for short) requesting the Court to permit him to give such
security for the performance of the decree in lieu of the liability to deposit
in cash the amount due from him under the decree. On the same day, the Court
granted him the permission subject to the condition that the appellant shall
deposit Rs. 2700 in cash and for the balance of 495 the decretal amount, he was
directed to give an adequate security. Subsequently on August 31, 1977, the
applicant moved an application under order 9 Rule 13 of the Code of Civil
Procedure requesting the Court to set aside the exparte decree submitting that
on August 6, 1977 when the suit was called on for hearing, he was prevented by
a sufficient cause from remaining percent in person because he had suddenly
taken ill and neither he could remain present nor could he inform his advocate
about his illness.
simultaneously, he deposited Rs. 2700 in cash
as directed by the Court. On September 21, 1977, Manasarim of the Court
reported that the security bond furnished by the appellant was not duly stamped
nor was it drawn on an appropriate stamp paper. The court directed the
appellant to furnish the requisite stamps within a week. In complianee with
this order, the appellant supplied requisite stamps for the bond on October 5,
1977. The decree-holder contested the application for setting aside the exparte
decree inter alia contending that there was non-compliance with the mandatory
provision contained in the proviso to sec. 17 (1) of the Act and therefore the
application purporting to have been made under order 9 Rule 13 for setting
aside the exparte decree was incomplete and was liable to be dismissed on this
short ground. The trial Court held that the failure of the appellant to file
surety bond duly stamped for the balance of the decretal amount as directed by
the Court in its order dated August 8, 1977 on or before August 31, 1977, when
the substantive application under order 9 Rule 13 was filed and the surety bond
submitted by the appellant on a court-fee stamp of Rs 2 being not a legal
document, there was non- compliance with the proviso to sec. 17 (1), and
therefore the application under order 9 Rule 13 was liable to be dismissed. The
application of the appellant was accordingly dismissed. After an unsuccessful
revision petition to the District Court under section 25 of the Act, the
appellant moved a petition under Art. 227 of the Constitution in the High Court
of Judicature at Allahabad.
A learned Single Judge of the High Court
after noticing the conflict of opinion between the Madras and Calcutta High
Court preferred the view expressed by the Calcutta High Court that a surety
bond as contemplated by the proviso to sec. 17 (1) of the Act would be governed
by the Indian Stamp Act. Accordingly the learned judge held that as the
appellant had failed to submit a valid surety bond duly stamped, within the
period of limitation, the application under order 9 Rule 13 was incomplete and
ineffective and has been 496 rightly dismissed by the Small Causes Court. Hence
this appeal by special leave.
Sec. 17 of the Act may be extracted:
"17. (1) The procedure prescribed in
Code of Civil Procedure, 1908 shall, save in so far as is otherwise provided by
that Code or by this Act, be the procedure followed in ? Court of Small Causes
in all suits cognizable by it and in all proceedings arising out of such suits;
Provided that an applicant for an order to
set aside a decree passed exparte or for a review of judgment shall, at the
time of presenting his application, 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 by him in this behalf, have
directed.
(2) Where a person has become liable as
surety under the proviso to sub-section (1), the security may be realized in
manner provided by section 145 of the Code of Civil Procedure, 1908." The
narrow question in this appeal is whether the surety bond which a
judgment-debtor has to furnish for complying with the order made under the
proviso to sec. 17 (1) would be governed by Art. 6 of Schedule 2 of the Court-
fee Act or Art. 57 of the Indian Stamp Act. The learned judge referred to the
conflicting view, expressed by the Madras High Court on the one hand and the
Calcutta and Bombay High Courts on the other and preferred the view taken by
the Calcutta High Court in this behalf. This conflict of opinion may be noticed
first. A full bench of Madras High Court in Kalapati Peda Pitchamma & Anr.
v. Chiruvelia(1) held that an order made by the Court under the proviso to sec.
17 (1) is nonetheless an order passed under the Code of Civil Procedure as the
provisions of the Provincial Small Cause Courts Act are only supplementary to
the Code of Civil Procedure and accordingly it was held that the security bond
executed by a surety to comply with an order made 497 by the Court under the
proviso would be governed by Art. 6 Schedule 2 of the Court-fee Act and not by
the provisions of the Indian Stamp Act. The learned judge then referred to
Kasemali v. Ajovendra Paul and ors (3) which in its turn had followed Babu Rao
Keshav Rao v. Kalavatibai Amrut Rao(1) herein it was held that the provisions
of the Provincial Small Cause Courts Act cannot be said to be supplemental to
the Code of Civil Procedure and that the special provision enacted in the
proviso to sec. 17 (1) of the Act. would have to be complied with on its own
force and cannot be treated as part of order 9 Rule 13 of the Code of Civil
Procedure.
It was noticed that even though the
application for setting aside an exparte decree has to be made under order 9
Rule 13 that provision does not obligate the judgment-debtor to give any
security as condition precedent which the proviso to sec. 17 (1) mandates.
After having noticed this conflict, the
learned Judge concluded that he preferred the Calcutta view and consequently
held that the surety bond to be furnished for complying with the order made
under the proviso to section 17(1) of the Act must be duly stamped as required
by the Indian Stamp Act. Art. 57 of the Indian Stamp Act was called in aid of
this conclusion. Frankly speaking, we have own reservations whether Art 57
would at all be attracted but we are not disposed to resolve this controversy
in this case and leave it for a more detailed argument because in this case, as
directed by the Court, the appellant had furnished the requisite stamps to be
affixed on the surety bond which was submitted within the period of limitation.
To recall a few facts, an application praying
for an order under the proviso to sec. 17 (1) was made within 2 days from the
date on which the suit was decreed exparte.
The suit was decreed exparte on August 6,
1977 and the application under the proviso to sec. 17 (1) was made on August 8,
1977. On that very day, the Court made an order for security bond to be
furnished for a certain amount and a bond was furnished with the legal
infirmity as found by the learned Judge of the High Court that instead of it
being stamped as required by the Indian Stamp Act, it was stamped with a
court-fee stamp of Rs. 2.
498 Look at the agony and misery of the
appellant. Two premier High Courts, Madras and Calcutta, differ on the
requirement of a valid security bond to comply with the proviso to sec. 17 (1).
And the degree of difference is not narrow but irreconcilable. If the view
taken by the Madras High Court had prevailed with the learned Judge, the matter
would have been decided in favour of the appellant because he had already
furnished a bond stamped with court-fee stamp of Rs. 2 and it was never
suggested that it was inadequate.
But as the learned Judge preferred the view
taken by the Calcutta High Court, the surety bond was found to be not duly
stamped. However, when the matter was before the trial court, on the contention
being raised by the decree-holder the appellant, as directed by the Court, did
supply the requisite stamps as required by the provisions of the Indian Stamp
Act. There was no fresh bond but old bond was duly stamped. In this situation,
why should the appellant be penalized by shutting the doors of justice even
though as advised by his lawyer, he acted in the best possible manner to comply
with the court's order. Uncertainty of the law, as far as the State of U.P. is
concerned, came to be resolved by the decision of the learned single Judge of
the High Court. Till then, the trial court was faced with two conflicting views
of two different High Courts. What ought to be the position of an indigent
litigant, advised by his lawer, in this situation left us guessing if not
wholly bewildered. We are of the opinion that in this situation, the litigant
cannot be visited with the consequence of being thrown out of court and
shutting the doors of justice in his face. What horrible agonosing situation,
the appellant faced cannot be gauged. He had produced the surety bond on the
first day i.e. August 8, 1977 duly stamped as then advised.
And had the learned Single Judge preferred
the Madras view which required that it should be stamped with court-fee stamp,
the appellant was fully protected. To his utter misfortune, the Calcutta view
found favour with the learned Single Judge and the appellant suffered the
irremediable consequence of this later day preference. We are of the opinion
that preferences of judges should not be allow to work hardship on litigant in
respect of a procedural provision. In this state of law and in view of the
further fact that after the limitation period of 30 days expired, Munasarim of
the Court drew the attention of the Court to the fact that the surety bond was
not duly stamped, the appellant, a litigant, cannot be penalized on the pain of
being thrown out of court on this technical ground. Justice cannot be a
playground by kicking 499 the ball from one court to other depending upon which
of the conflicting views will ultimately prevail leaving a litigant on the
tenterhooks and ultimately to be told that he acted according to the view taken
by a Full Bench of a High Court which did not find favour with the learned
Single Judge of the High Court of the State in which he resided. This is not justice.
This is legalese which ought to be avoided.
We accordingly allow this appeal, set aside
the order of the trial court as well as the order in revision petition by the
learned Addl. Distt. Judge as also the decision of the High Court and grant the
application made by the appellant for setting aside the exparte decree and set
aside the exparte decree. The trial of the suit shall proceed from the stage
where the suit was decreed exparte. In the circumstances of the case, there
will be no order as to costs.
H.S.K. Appeal allowed.
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