JUDGMENT O.N. Khandelwal, J.
1. The petitioner-tenant had made an application under Order IX, Rule 13 of the C.P.C. before the Judge Small Cause Court for setting aside the ex parte decree, which has been rejected for non-compliance, of the condition contained in Section 17 of Provincial Small Cause Courts Act. The revision filed by the petitioner has also been rejected by the District Judge, Sultanpur. In this writ petition both the aforesaid orders (Annexures-1 and 2) have been challenged.
2. The opposite party Nos. 1 and 2 are the landlords who filed a suit for ejectment and arrears of rent against the petitioner, opposite party Nos. 3, 4 and two other persons (since deceased). The petitioner having fallen ill, could not attend the trial court. He was admitted in Escorts Heart Institute and Research Centre, New Delhi, for treatment where he remained confined for about three months. On his return, he came to know that suit has proceeded ex parte against all the defendants. Application moved under Order IX, Rule 7. C.P.C. for recalling the order dated 25.3.2004 was rejected on the ground that hearing had taken place. The suit was decreed ex parte on 27.3.2004.
3. The petitioner moved application under Order IX, Rule 13, C.P.C. on 29.3.2004, stating the circumstances on account of which he could not appear on the date of hearing. The landlord opposed that. application inter alia, on the ground that neither the decretal amount has been deposited nor security has been furnished under Section 17 of the Provincial Small Cause Courts Act.
4. Thereafter petitioner moved an application on 14,3.2005, under Section 17 of Provincial Small Cause Courts Act seeking permission to deposit the decretal amount stating therein that he has been regularly depositing the rent under Section 30 of U.P. Act No. 13 of 1972. That application has been rejected mainly on the ground that the decretal amount or security was not deposited before the application for setting aside ex parte decree was made.
5. Since caveator landlord had appeared, therefore, with the consent of both the parties, the matter was heard finally at the admission stage itself.
6. In Khursheed v. 1st Additional District Judge, Moradabad (H.C.) 1988 ALR 683, it was observed that the condition making previous application for furnishing security is only directory under Section 17 and not mandatory. Security could have been furnished before the application for setting aside was considered. In that case ex parte decree was passed on 7.12.1982, application under Order IX, Rule 13, C.P.C. was moved on 10.12.1982, application under the provisions of Section 17 of the Provincial Small Cause Courts Act for permission to furnish security was made on 20.12.1982, which was allowed on 4.1.1983. Under this background, application for setting aside decree was found entertainable and was allowed.
7. The writ petition filed by the tenant was allowed in Suresh Chand v. VIIth Additional District Judge, Muzaffarnagar and Ors. 1991 (2) ARC 545, adopting the same view. In that case too ex parte decree was passed on 14.1.1987, application under Order IX. Rule 13, C.P.C. was moved on 28.1.1987, which was allowed on 13.2.1987. The application under Section 17 was also allowed and personal security was accepted. It would thus, appear that in both these instances the application for security or deposit was made within the period of limitation prescribed for setting aside ex parte decree.
8. Example of State of M.P. and Anr. v. Pradeep Kumar and Anr. 2000 (4) AWC 3201 (SC), was also made in which the provision of Order XLI, Rule 3A, C.P.C. was interpreted by the Hon'ble Supreme Court:
Rule 3A says that : "when an appeal is presented after the expiry of the period of limitation specified therefore, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period.
Hon'ble Supreme Court observed that no doubt Sub-rule (1) of Rule 3A has used the word "shall" and the employment of the word "shall" would clearly indicate that the requirement is peremptory in tone. But such peremptoriness does not foreclose a chance for the appellant to rectify the mistake, either on his own or being pointed out by the Court. The word "shall" in the context need be interpreted as an obligation cast on the appellant. Why should a more restrictive interpretation be placed on the sub-rule? The rule cannot be interpreted very harshly and make the non-compliance punitive to appellant. It can happen that due to some mistake or lapse, an appellant may omit to file the application (explaining the delay) along with the appeal.
9. In Sheo Dutt v. Xth Additional District Judge, Aligarh and Ors. 2002 (5) AWC 4052 : 2003 (21) LCD 139, Hon'ble Anjani Kumar, J., expressed the view that no application under Order IX, Rule 13, C.P.C. for setting aside ex parte decree can be filed unless proviso to Section 17 is complied with. According to his lordship compliance of proviso to Section 17 is mandatory. In Krishan Kumar v. Hakim Mohammad Umar 1978 ALJ 738, the High Court observed that an application for setting aside ex parte decree can be regarded as validly presented and competent only when the applicant along with application had either deposited all the amount due from him under the decree or in pursuance of the Judgment or previous to the application had filed an application seeking direction from the Court permitting him to give security for performance of the decree or compliance of the judgment. It has also been held that the compliance of the requirement is to be made within the period of limitation provided for which is 30 days. Reference of Full Bench decision rendered by Andhra Pradesh, High Court in Pilla Satya Narayana v. Vadaparthi Ramabrahmin , was made.
10. Learned Counsel for the respondent further relied upon the Judgment given by this High Court in Shesh Narayana Shukla v. XIVth Additional District Judge, Kanpur Nagar and Ors. 1996 AWC 2167, in which again It was held that deposit of decretal amount or furnishing of security at the time of presenting application under proviso to Section 17(1) is mandatory for which the limitation is 30 days.
11. On the other hand learned Counsel for the petitioner drew this Court's attention towards the observations made by Apex Court in different judgments, according to which the procedural law is simply to facilitate justice and not a thing to design the trip build up. In Sangram Singh v. Election Tribunal Kotah and Anr. . considering the provisions of the Code dealing with the trial of the suits, it was opined that:
Now a Code of procedure must be regarded as such. It is procedure, something designated to facilitate justice and further its ends : not a Penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical 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.
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 requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that 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 that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.
12. In Toppline Shoes Ltd. v. Corporation Bank , the question for consideration was whether the State Consumer Disputes Redressal Commission could grant time to the respondent to file reply beyond total period of 45 days in view of Section 13(2) of the Consumer Protection Act, 1986. It was held that the intention to provide time frame to file reply is really made to expedite the hearing of such matters and avoid unnecessary adjournments. It was noticed that no penal consequences had been prescribed if the reply is not filed in the prescribed time. The provision was held to be directory. It was observed that the provision is more by way of procedure to achieve the object of speedy disposal of the case.
13. In Rani Kusum (Smt.) v. Kanchan Devi (Smt.) and Ors. 2005 (4) 3861G (SC) : 2005 (23) LCD 1443. Hon. Supreme Court has held that Order VIII, Rule 1 after the amendment casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of Court and also does not specifically take away the power of the Court to take the written statement on record though filed beyond the time as provided for. Further the nature of the provisions contained in Order VIII, Rule 1 is procedural. It is not a part of the substantive law. The substituted Order VIII, Rule 1 Intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to plaintiffs and petitioners approaching the Court for quick relief and also to the serious inconvenience of the Court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice burled.
14. It has also held that all the procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of C.P.C. or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situated in the ends of justice.
15. It has further been held by Hon'ble Supreme Court that no person has vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the Court in which the case is pending, and if an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. A procedural law should not ordinarily be construed as mandatory; the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of Justice is not to be followed. Procedural law is not to be a tyrant but a servant, not an obstruction but an aid of justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.
16. The Hon'ble Supreme Court in Kedar Nath v. Mohan Lal Kesarwani and Ors. , had occasion to interpret the provisions of Section 17 of the Provincial Small Cause Court Act. In that case ex parte decree for eviction was put to execution and on 21.2.1998 the decree holder had even obtained the possession. On 26.2.1998 the tenant moved an application under Order IX, Rule 13, C.P.C. but neither the amount due under the decree was deposited nor any application was filed seeking direction of the Court to give security for the performance of the decree. During the course of hearing of arguments on 14.10.1998, it was pointed out that the compliance of proviso to Section 17 of the Provincial Small Cause Courts Act has not been done. On the next date, i.e., 15.10.1998, the tenant moved an application for permission to furnish security. However, the application for setting aside ex parte decree was dismissed on 15.11.1998. This order was reversed by the revisional court, which was also maintained by the High Court. Hon'ble Supreme Court while deciding the appeal went deep in the history of this provision, which was in a different form earlier. Section 17 provides as under:
Application of the Code of Civil Procedure.(1) The procedure prescribed in the Code of Civil Procedure, 1908, shall save insofar 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 application for an order to set aside a decree passed ex parte or for a review of judgment shall, at the time of presenting the 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 realised in manner provided by Section 145 of the Code of Civil Procedure, 1908.
17. Earlier there were the words "security to the satisfaction of the Court for the performance of the decree or compliance of the judgment as the Court may direct". It has been deleted by Act No. 9 of 1935 and substituted by the present words "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 his behalf, have directed". The statement of the objects and reasons for the 1935 amendment was set out as under:
the Act is designated to remove certain doubts which have arisen in the interpretation of the proviso to Sub-section (1) of Section 17 of the Provincial Small Cause Courts Act, 1887. As the section stands, an applicant is required to give security to the satisfaction of the Court at the time of presenting his application. It follows that, in order to ascertain what security satisfies the Court, the applicant must already have made an application in that behalf. There is some doubt whether the words "as the Court may direct" apply to the deposit of the whole decretal amounts as well as to the giving of approved security. The Act is intended to make it clear that the preliminary application to ascertain what security will satisfy the substantive application for the order to set aside the decree, and that it always is open to the applicant to adopt the alternative course of depositing the total decretal amount.
18. Considering the object behind establishing Small Cause Courts and the scheme of the Provincial Small Cause Courts Act in view of various pronouncement made by different High Courts, Hon'ble Supreme Court was pleased to observe as follows:
The proviso does not provide for the extent of time by which such application for dispensation may be filed. We think that it may be filed at any time up to the time of presentation of application for setting aside ex parte decree or for review and the Court may treat it as a previous application.
19. It is thus abundantly clear that an application to furnish security or for permission to deposit the decretal amount must have been made by the time when the application for setting aside ex parte decree was presented which in the present case is 29.3.2004, while the application for seeking permission to deposit the decretal amount was made on 14.3.2005, There was non-compliance of proviso to Section 17 of Provincial Small Cause Courts Act, such application was not maintainable and was rightly rejected by the Courts below.
20. Learned Counsel for the petitioner tried to interpret the word "at the time of presenting the applicant" the time when the applicant is taken up for consideration by the Court, i.e., when the application is heard in this respect. He tried to take help from the observations made by Hon'ble Supreme Court in Union of India v. Savjiram and Anr. . According to which, the expression "present" means in existence at the time at which something is spoken or written, being in a specified place, thing. Grammatically, it means denoting a tense of verbs used when the action or event described is occurring at the time of utterance or when the speaker does not wish to make any explicit temporal reference. It also means for the time being now. Commonly, it denotes existence of a particular thing or a matter at the time of consideration. But the aforesaid observations has been made in a different context which cannot be applied In the present case where language of the Act makes it clear that an application to set aside ex parte decree shall "at the time of presenting application either deposit...."
21. Section 3 of the Limitation Act, 1963, prescribes bar of limitation, according to which "every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed." Sub-section (1) explains that "a suit is instituted in ordinary cases when the plaint is presented to the proper officer. In the case of a pauper, when his application for leave to sue as pauper is made...." Therefore, the words "at the time of presenting application" occurring in Section 17 of the Provincial Small Cause Courts Act means the time when the application is presented to the proper officer of the Court. Thus, this argument of the learned Counsel for the petitioner cannot be accepted that moving of application for permission to deposit the decretal amount "before consideration of the application under Order IX, Rule 13, C.P.C." was sufficient compliance.
22. No other point was either argued or pressed before me. In view of what has been discussed above, this writ petition fails and is dismissed.
23. At this juncture, the petitioner prayed for some time to vacate the premises so that he may find out suitable place to shift the business. In view of this submission made, the petitioner is granted six months time from today to vacate the premises.