Case: Bhagwan Dass Arora Vs. First Additional Distt. Judge, Rampur

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 t he 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 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 Ex-parte 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 pre sent 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, 1 977. The decree-holder contested the application for setting aside the ex-parte 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 rightly dismissed by the Small Causes Court. Hence this appeal by special leave.

Reasoning: 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 wa s 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-holde r 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 courts order. Uncertainty of the law, as far as the State of U.P. is concerned, came to be resolved by the decision of t he 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 a ppellant 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-f ee 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 t hat 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 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 d id 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.