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PETITIONER: BHAGWAN DASS ARORA

       Vs.

RESPONDENT: FIRST ADDL. DISTT. JUDGE, RAMPUR

DATE OF JUDGMENT25/07/1983

BENCH: DESAI, D.A. BENCH: 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

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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]

JUDGMENT:      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 precent 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

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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

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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

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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 wag  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. 500