This Second Appeal has arisen out of the judgment and decree dated 3.4.1979 passed by the District Judge, Raebareli in Regular Civil Appeal No. 43 of 1978(Mohammad Hanif versus the State of U.P. and others affirming the judgment and decree dated 27.1.1978 passed by the learned Civil Judge, Raebareli in Regular Suit No. 3 of 1973 between the same parties dismissing the suit as non-maintainable. The suit was held non-maintainable for want of the payment of pre-deposit in terms of the Amending Act.
Heard Sri Ram Karan Agarwal learned counsel for the appellant and Sri Sharad Kumar Dwivedi learned counsel for the State.
The suit for injunction was instituted by the appellant-plaintiff who stood as surety for payment of loan advanced to respondent no. 5 herein this appeal. The suit for injunction was dismissed having abated. The consequence of abatement was opined in view of an amending Act i.e. U.P. Public Money(Recovery of Dues) Amendment Act, 1975, Act No. 17 of 1975. This amendment in the statute has remained unquestioned, therefore, the statute being binding upon the parties has rightly been construed by the trial court as well as the first appellate court below.
Sri Sharad Kumar Dwivedi, learned counsel for the State has placed reliance upon the judgments reported in AIR 1980 SC 801(the Director of Industries, U.P. and others versus Deep Chand Agarwal), 2000(Suppl.) R.D. 241(Sanad Kumar Niranjan and others versus Collector Jalaun and others) and 2004(2) UPLBEC 2037(Narendra Kumar and another versus Collector, Bulandshahar and others) to contend that such a provision inserted in the Act was for the speedy recovery of the loan amount as arrears of land revenue and constitutionality of this statutory purpose stands well tested, therefore, the judgmnet rendered by the apex court in the case of Mardia Chemicals Ltd. Versus Union of India reported in AIR 2004 SC 2371 would not lend any support to the view point of the appellant.
Learned counsel for the appellant also drew attention of this Court to a judgment rendered by the same very court in Regular Suit No. 1 of 1973 on 25.5.1977 wherein the same loan transaction arising out of one and the same agreement was found illegal and thus the relief of injunction was granted to the plaintiff in that case who was a co-surety. The suit was entertained without asking for the deposit of recovery amount as pre-deposit.
Learned counsel for the State referring to the judgments reported in AIR 1986 Delhi 305(Jogender Singh versus Smt. Nirmal Naini Mehra and others), AIR 1971 SC 2355(Mathura Prasad Sarjoo Jaiswal and others verus Dossibai N. B. Jeejeebhoy) and the judgment rendered by the Apex Court in the case of Satyendra Kumar and others versus Raj Nath Dubey and others in Civil Appeal No. 4083-4084 of 2016 and 2016 has succinctly pointed out that an erroneous decision which may have been rendered by the same very court would not be a binding precedent having force of law.
The submissions putforth by learned counsel for the respondents are convincing and deserve approval. On the contrary, the case put up by the appellant on the premise of the judgment rendered by the same very court granting the benefit to the co-surety in Regular Suit No. 1 of 1973 is concerned, the same is of no help to him insofar as the maintainability of suit is concerned.
Following substantial question of law was framed by this Court on 28.5.2019:-
"As to whether the suit filed by the appellant without making compliance of the proviso appended to Section 3(4) of the U.P. Public Moneys (Recovery of Dues) Act, 1972 is non maintainable notwithstanding the fact that the regular suit filed by the co-surety was entertained by the civil court on the alleged ground of fraud and decreed in his favour with respect to the same agreement in which the name of the appellant-plaintiff is mentioned as co-surety".
Having considered the legality of the arguments advanced, this Court is of the clear opinion that the impugned judgements are fully in consonance with law on the aspect of non-maintainability of suit.
It is however clarified that this decision shall not come in the way of the appellant-plaintiff to make an appropriate application before the same very court to rectify the defect of pre-deposit existing as on the date of institution of the suit and if the defect is rectified, the suit shall accordingly proceed and shall be decided on its own merit and the benefit of finality of the judgment rendered in the case of co-surety, if any, may be considered in the light of admissible evidence.
The Second Appeal subject to what has been observed above is hereby dismissed.
Order Date :- 28.08.2019 kanhaiya