ORDER
1. These are two petitions arising out of the same matter. As such, they are consolidated to be taken up for disposal by a common order as assented to by the learned Counsel for the parties.
2. Matrix of the facts is that Majid Ali, petitioner is Writ Petition No. 15312 of 1992, instituted a suit, it being suit No. 88 of 1988, in the court of Judge, Small Causes, Gorakhpur for the relief of eviction of the petitioner, Qazi Nemat Ullah from the suit premises and also for recovery of arrears of rent, damages and mesne profits. The suit ended in being decreed ex parte by means of the judgment and decree dated 7-10-1988 as a consequence of which, the decree holder was put in possession of the suit premises in execution of the decree, on6-11-1989. An application under p. 9, R. 13 C.P.C. came to be filed by petitioner Qazi Nemat Ullah on 10-11-1989 seeking recall of the aforesaid decree granted ex parte. The application was allowed and the ex parte decree was set aside by means of the order dated 2-2-1991 on the finding that summons were not duly served on the defendant. This order dated 2-2-1991 was impugned in revision, which culminated in the order dated 2-2-1991 being reversed by the 6th Addl. District Judge, Gorkhpur by means of the judgment and order dated 29-7-1991 on the ground of non-compliance of the requirements of the proviso to Section 17(1) of the Provincial Small Cause Courts Act, 1887 (in short the 'Act'). It is the validity of this order that has been impugned in the present petition No. 24797 of 1991 by the tenant-petitioner, Qazi Nemat Ullah.
3. The other writ petition No. 15312 of 1992 has been filed by landlord-petitioner Majid Ali seeking the relief of quashing the orders dated 23-12-1991 and 6-4-1992 passed by the learned Judge, Small Causes Court, Gorakhpur and the learned District Judge, Gorakhpur respectively. By order dated 23-12-1991, the learned Judge, Small Causes Court, Gorakhpur allowed the restitution application filed on behalf of the petitioner, Qazi Nemat Ullah, on the dint of the order dated 2-2-1991 whereby the ex parte decree in the favour of the landlord was set aside, entailing restitution to the tenant of possession of the premises in dispute, which was taken by the landlord on 6-11-1989 on the basis of ex parte decree as stated supra.
4. It would crystallise from the facts on record that along with his application for setting aside the ex parte decree, the defendant Qazi Nemat Ullah also moved an application dated 10-11-1989 stating therein that instead of depositing the decretal amount in cash, he was prepared to give security for the performance of the decree and accordingly, a prayer was made in the application that the court may be pleased to pass an order in this regard and give a week's time to submit surety bond. The application was allowed as would be evident from the order dated 10-11-1989 (Annexure-4 to the writ petition filed by QaziNemat Ullah) which runs' as below.
10&11&89 vkt oj[kkLr vUrxZr vkns'k 9fu;e 13 tkIrk fnokuh e; 'kiFk i= 5 x ds nkf[ky gqbZ A ,oa 6 x ij oj[kkLr ckcrfookfnr edku esa fdlh rjg ds rksM+ QksM+ o [kwokscny u djus gsrq 7 x ckcrckrSukrh vehu vnkyr fookfnr edku dh eqdEey fjiksVZ eaxkus gsrq o uksfVl dsrkehyk gsrq 8 x oj[kkLr fMhVy ,ekmUV dh tekur nsus ds fy, 9 x izkFkZuki=vUrxZr /kkjk 144 tk- fnokuh ds ckcr nkf[ky fd;k vr% vkns'k gqvk fd % Issue notice fixing 8-12-89 for objection and disposal. Parties shallmaintain status quo till 8-12-89steps 7 days and ask for report ofAmin. Application allowed issuewrit to Amin calling for report by8-12-89. Application may file sureties for decretal amount withinsevan days.' JSSC'.
The Hindi order-sheet dated 10-11-1989 (Annexure 4 to the petition) indicates that the application for giving security for the performance of the decree or compliance with the judgment was numbered as 8-C. The expression 'application allowed' occurring in the English order-sheet dated 10-11-1989, obviously refers to application 8-C inasmuch as there was no question of allowing the other application for the disposal of which 8-12-1989 was the date fixed by the learned Judge Small Causes Court. It further appears from the record that on 16-11-1989, the defendant Qazi Nemat Ullah filed surety bonds in the court along with an application with the prayer that the same may be accepted by the Court in compliance with the requirements of the proviso to Section 17(1) of the Act. It appears that the learned Judge Small Causes Court directed the said application dated 16-11-1987 to be put up on the date fixed i.e. 8-12-1989. On 8-12-1989, the case was adjourned to 16-12-1989 without passing any order on the application seeking acceptance of the surety bonds filed on 16-11-1989. Thereafter, it appears that the case remained stayed on the basis of certain stay orders passed by superior Court and when the matter was taken up us by the Court on 2-2-1991, itwas discovered during the course of arguments that no order was passed on the application dated 16-11-1991 seeking acceptance of surety bonds filed along with the application in compliance with the Court's order dated 10-11-1989. The learned Judge Small Causes Court on consideration of the facts and circumstances of the case, adjudged it to be only an irregularity and passed a composite order accepting the surety bonds and thereafter, allowing the application for setting aside the ex parte decree, on merit. The learned Addl. District Judge has set aside the order passed by the learned Judge Small Causes Court on the ground that the application seeking permission to give security in the form of surety bonds, was filed on 16-11-1991 i.e. after the filing of the application for setting aside the ex parte decree.
5. Since the two petitions sprout out of the same matter, they are being taken, up for hearing and disposal by a common order on being assented to by the learned Counsel for the parties.
6. I have heard Sri S.M. Arshad Rizvi, learned counsel for the tenant-Qazi Nemat Ullah and Sri R.H. Zaidi for the landlord-petitioner Majid Ali.
7. Sri R.H. Zaidi, learned Counsel appearing for the landlord, Majid Ali, urged that since the defendant-judgment-debtor Qazi Nemat Ullah neither deposited the decretal amount nor gave security for the performance of the decree or compliance with the judgment at the time of presentation of his application nor did he move an application, before moving the application for setting aside the ex parte decree, for orders from the Court as to giving of security in lieu of the cash deposit, the application for setting aside the ex parte decree was rightly rejected by the revisional court for non-compliance of the proviso to Section 17(1) of the Act. The learned Counsel appearing for the defendant-Judgment-debtor urged that the proviso was complied with and the learned Revisional Court was not justified in reversing the order dated 2-2-1991.
8. In order to appreciate the questionsinvolved in the case, I think it useful to quote Section 17 of the Act, in so far as it is germane to the points involved in the present case, as below.
'17. Application of the Code of Civil Procedure.
(1) The procedure prescribed in the 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 a 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 ex parte or for a review of judgment, shall at the time of presenting his application, either deposite in court the amount due from him under the decree or in pursuance of the judgment or give such security for the performance of the deceree or compliance with the judgment as the court may on a previous application made by him in this behalf, have directed.....'
9. It cannot be gainsaid that Section 17 is a procedural provision in the Act. It lays that the procedure to be followed in the trial of suits of Small Cause nature and all proceedings arising out of such suits shall to the same as provided in the Code of Civil Procedure except as is otherwise provided in the Code or in the Act. Accordingly 0. 9, Rule 13 C.P.C. stand engrafted by adoption in Section 17 of the Act. The proviso to subsection (1) of Section 17 too, being integral to a procedural enactment, is itself a remedial and procedural law,
10. In Sangram Singh v. Election Tribunal Kotah, AIR 1955 SC 425, while explaining the purpose of a procedural law (the Code of Civil Procedure) the Supreme Court observed as under at page 429:
'Now a Code of Procedure must be regarded as such. It is 'procedure', something designed to facilitate justice and further it ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should, therefore,be guarded against (provided always that justice is done to 'both' sides) lest, the very means designed for the furtherance of justice be used to frustrate it.'
The Court further observed as below:
'Next there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which required that men should not be condemned unheard, that decisions should not be reached behind their backs that the proceedings that affect their lives and property should not continue in their absence and they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to the proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.' .
11. In Byram Pestonji Craviwala v. Union Bank of India, 1991 (4) JT SC 15 : (AIR 1991 SC 2234) it has been held by the Supreme Court that the statutes relating to remedies and procedure must receive a liberal construction.
12. Section 17 including the proviso to sub-section (1) read with O.9, R. 13 C.P.C. being in the nature of a procedural and remedial provision, the above principles of law have to be kept in mind while construing the scope and ambit of the said provisions including the proviso. In these days of mounting arrears and paucity of time, the courts while construing a procedural provision of law like the ones on hand, should as far as possible, adopt that construction which is capable of saving the courts precious time and energy convertible in terms of public money, apart from saving avoidable wastage of concerned litigants' time, money and energy. Such a construction of a procedural provision of law would in my opinion, subserve large public interest therefore, should as a matter of public policy, be preferred to one that may result in avoidable delay in disposal of cases. No injustice would be caused to any party if it is held that both theapplications comprehended by the proviso may be filed together and it would not be illegal to pass a composite order accepting the security already filed and allowing the application for setting aside the ex parte decree.
13. Craies in his book 'Statute Law' (7th Edn.) while explaining the purpose and import of a proviso states at page 218 thus :
'The effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of enactment, or to qualify something enacted therein, which but for the proviso would be within it.....The natural presumption is that, but for the proviso, the enacting part of the section would have included the subject matter of the proviso.'
14. After noticing the aforesaid passage and a large number of other authorities on the scope of a proviso, the Supreme Court in S. Sundaram v. V. R. Patabhiraman, AIR 1985 SC 582 held as under at page 592 :--
'We need not multiply authorities after authorities on this point because the legal position seems to be clearly and manifestly well established. To sum up, a proviso may serve four different purposes:
(1) qualifying or excepting certain provisions from the main enactment;
(2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;
(3) it may be so embedded in the Act itself as to become an integral part of the enactment substantive enactment itself; and
(4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision.'
15. The proviso to Section 17(1) of the Act, came up for consideration before a Division Bench of this Court in Zafar Uddin V. Madan Mohan, AIR 1960 All 612 : (1960 All LJ 678). The facts of the said case werethat an ex part decree was passed on 2-6-1953 and on 6-7-1953, the defendant moved an application for direction from the court permitting him to furnish security through a personal surety bond for the entire decretal amount. At the same time he presented an application for setting aside an ex parte decree. On 9-7-1953, the Court made an order 'allowed' on the application seeking court's direction to furnish security in the form of personal surety bonds which were filed the same day. It appears that the defendant apprehended that the surety bond furnished by him may not be covering the entire decretal amount and accordingly, on 14th July, 1953, he deposited a sum of Rs. 9/- and odd in cash in the court. The security furnished was verified and finally, accepted by the Court. Subsequently, the plaintiff objected to the maintainability of the application for setting aside the ex parte decree on the ground that the defendant had failed to comply with the requirements of the proviso to Section 17(1) of the Act. The objection was accepted by the learned Judge Small Causes Court and the application for setting aside the ex parte decree was dismissed. The matter came up to the High Court before a learned single judge, who felt that the question relating to interpretation of the proviso was an important question of law which should be considered by a Division Bench and consequently, the case was referred to a Division Bench V. Bhargava, J. as he then was while delivering the judgment for the Bench, observed as below at page 614 (of AIR 1960 All) :--
'In a case like the present one, the interpretation that the direction should also be prior to the making of an application for setting aside an ex parte decree necessarily acts to the prejudice of the applicant and his option to furnish security instand of depositing any cash is taken away the mere omission of the court to make a direction even though the subsequent orders of the court show that such a direction was appropriate and was actually made by the court subsequently. On the other hand, if we accept the interpretation that the direction if the court itself need not be prior to the application for setting aside an ex parte decree, or in the alternative, if adirection is made subsequently, it would date back to the previous application for a direction, no such cases of hardship would arise where a party's right may be lost due to delays by court in spite of the party having dons all that he was required to do within the time allowed by law.'
16. In Khurshed v. 9th Addl. District Judge, Moradabad, 1988 (2) ARC 363, it has been held that Section 17 of the Act is a provision laying down the procedure to be followed in a suit which is filed before the judge Small Cause Court and all proceedings arising thereon and that it lays down the rule of procedure which is intended to advance justice and not to defeat it. The learned Judge (S. D. Agarwal, J.) observed in the above case that 'the proviso to Section 17(1) being only a rule of procedure, the provision for making of previous application for permission to furnish security is only directory and not mandatory and further, the court has only to see as to whether the security has been furnished before it considers the application for setting aside the ex parte decree.
17. Having considered the submissions made by the learned Counsel for the parties in the light of the principles of law laid down in the above mentioned authorities and having perused the impugned judgment and order passed by the revisional court, I am of the firm view that the impugned judgment order is not sustainable in law, firstly for the reason that it proceeds on an erroneous assumption that the application seeking direction from the court for the purpose of furnishing surety bond with a view to giving security for the performance of the decree or compliance with the judgment was giving on 16-11-89 and, secondly for the reason that in the facts and circumstances of the case the revisional court has erred in holding that the proviso to sub-section (1) of Section 17 of the Act, was not complied with by the defendant-petitioner.
18. The application seeking court's direction for furnishing security bond instead of making cash deposit, was filed on 10-11-1989, the date on which the application for setting aside the ex parte decree was filed and the same was allowed giving one week's time for furnishing the bonds and, in compliance withthe court's order dated 10-11-1989, surety bonds were submitted along with an application on 16-11-1989 within the time allowed by the court vide order dated 10-11-1989 and it was prayed that the surety bonds be accepted but it was faux pass of the court that it did not pass an appropriate order on the application dated 16-11-1989 moved on behalf of Qazi Nemat Ullah either accepting the surety bonds or otherwise.
19. The object of the rule embodied in Order 9, Rule 18 C.P.C. and the proviso to Section 17(1) of the Act is to advance the cause of justice in such a manner as may not lead to injustice to any of the parties to the suit or proceeding. The mischief sought to be suppressed by the proviso is to reduce the chances of frivolous application being filed by an unscrupulous defendant for setting aside a bona fide and genuine ex parte decree and to achieve this objective the proviso adds a condition precedent to the 'entertainability' of the application for setting aside the ex parte decree under O.9, R. 13 of the Code. The condition precedent added by the proviso is that at the time of 'presenting' his application for setting aside the ex parte decree the defendant must either deposit in court the amount due from him under the decree or give such security for 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'. The court is left with no discretion to dispense with this requirement except on pains of violating the statutory requirement except on pains of violating the statutory requirement comprehended by the proviso. The only discretion left with the Court is that instead of cash deposit it may direct the concerned defendant to give such security for the performance of the decree or compliance with the judgment as the court may think fit.
20. The expression 'on previous application made by him in this behalf occurring in proviso to Section 17(1) of the Act, does not, in my opinion, necessarily comprehend that an application to give such security for the performance of the decree or compliance with the judgment as the court may direct must befiled before an application for setting aside an ex parte decree is filed. All that the said expression comprehends is that the order of the Court directing defendant-judgment debtor to give such security as it considers necessary, should be passed on an application moved in this behalf before the application for setting aside ex parte decree is entertained.
21. The word 'entertained' in this connection has the meaning assigned to it by the Supreme Court in M/s. Laxmi Engineering Works Ltd. v. Asstt. Commissioner (Judl) Sales Tax Kanpur Range Kanpur, AIR 1966 SC 488 followed in Sri Shyam Kishore v. M.C.D., 1992 (5) JT 335,
22. The expression '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' was substituted for the expression 'security to the satisfaction of the court for the performance of the decree or compliance with the judgment, as the court may direct' by S. 2 of the Provincial Small Cause Courts (Amendment) Act, 1935. The expression 'on a previous application made by him in this behalf' occurring in the proviso as it stands amended by the Amending Act, 1935 no doubt suggests that the direction from the court as to giving of security should be so obtained by the defendant as to be able to give the security at the time of 'presenting' the application for setting aside the ex parte decree. This necessarily implies that court's direction as to giving of the security instead of depositing the amount due under the decree in cash has to be obtained prior to the act of presentation of the application for setting aside the ex parte decree. This can be done only if the application for court's direction as to giving of the security is filed before hand. It may, however, be observed that the word 'presenting' used in the proviso has its origin in the word' present' which used as an adjective connotes something 'that is actually being dealt with, written, discussed or considered' according to the shorter Oxford English Dictionary 3rd Edn. and, 'submitting for consideration or action' according to law Lexicon Webster's Dictionary. Accordinglythe expression 'at the time of presenting the application' may mean 'at the time of its discussion or consideration'. Therefore, the security under the proviso may be given even on the date the application under Order 9, Rule 13, C.P.C. comes up for consideration. That apart, since the rule embodied in the proviso is, procedural and remedial, it has to be construed liberally so as to advance the cause of justice without doing any injustice to the plaintiff-decree-holder and so construing the rule, it can safely be said, without offending the spirit of the proviso, that the application for court's direction as to giving of security may be filed along with the application for setting aside the ex parte decree and the direction of the Court obtained therein the same day and, since the court has the discretion under the proviso to accept security instead of cash deposit for the performance of decree or compliance with the judgment, it may be taken to be implicit in such discretion a further discretion to grant time to the defendant to furnish the desired security. If the security is furnished within the time allowed by the court it shall relate back to the date on which the court directed the defendant to furnish security within the specified period. And further an order accepting the security already filed pursuant to any such order of the Court as aforesaid, may be accepted any time even at the time of hearing and disposal of the setting-aside-application. It goes without saying that if the Court finds the security insufficient it may give-further time to the defendant to make good the deficiency.
23. The decision in Sharif v. Suresh Chand, 1979 ACJ 149, reliance on which was placed by Sri Zaidi, being against preponderance of the judicial opinion of this Court, is not acceptable to me. Further the decision in Sharif's case (supra) appears to be per incuriam inasmuch as the Division Bench decision of this Court in Zafar Ullah's case (supra) has not been taken notice of by the learned Judge (Hon. V.K. Mehrotra) in the case of Zafar Sharif (supra). The conclusion arrived at by the learned Judge to the effect that 'the applicant seeking permission to file security in lieu of deposit of the amount incash, has to make an application prior to the time when he presents his application for setting aside the ex parte decree 'does not precede the discussion of the relevant aspect of the related provisions as considered and discussed in the present case.
24. In view of the above discussion, I am of the opinion that the surety bonds furnished by the defendant petitioner on 16-11-1989 i.e. within the time specified by the Court vide order dated 10-11-1989, upon its acceptance by the court vide order impugned, has to be taken as due or, in any case, substantial compliance of the proviso to sub-sec. (1) of S. 17 of the Act. Therefore, the order passed by Judge Small Cause Court was not liable to be set aside on the ground that the surety bond was not deposited on the date of filing of the application for setting aside the ex parte decree. Since other pre requisite conditions for setting aside the ex parte decree within the meaning of O.9 Rule 14, C.P.C. were satisfied in the opinion of the trial court, the order passed by the revisional court has to be quashed.
25. Civil Misc. Writ petition No. 15312 of 1992 is bound to fail for obvious reason. It does not survive after the revisional order dismissing the application under Or. 9, R. 13, C.P.C. is quashed.
26. In the result, the writ petition No. 24797 of 1991 succeeds and is allowed. The impugned order dated 29-7-1991 (Annexure-6 to the petition) is quashed. The other writ petition fails and is dismissed.
27. Parties to bear their respective costs.
28. Order accordingly.