The defendant-revisionists have preferred this revision under Section 25 of the Provincial Small Cause Courts Act, 1887 against the order dated 28.1.2016 rejecting their application under Order 9 Rule 13 C.P.C. for setting aside the alleged ex-parte order dated 16.2.2004 and the consequent decree passed in SCC Suit No.20 of 2002.
The two sons and a daughter of late Anwar Ahmad Sabari instituted Suit No.20 of 2002 against Ismail Khan for arrears of rent and eviction. Ismail Khan expired after the institution of the suit leaving behind as alleged his widow, four sons and a daughter. On his death, his two sons Mohd. Israil and Atula were substituted and the suit proceeded against them. The notice of the suit could not be served upon them. Therefore, recourse to substituted service was taken and the notice was published in the news-paper. Thereafter the suit was decreed ex-parte on 16.2.2004 in their absence.
The aforesaid two defendants in the suit on 30.5.2014 filed an application under Order 9 Rule 13 C.P.C. contending that they had no knowledge of the aforesaid ex-parte decree. They came to know about it in May, 2014 when the same was put in execution. Accordingly, after inspection of the record on 29.5.2014 they have moved the above application.
Section 17 of the Act provides for application of the Code of Civil Procedure in suits cognizable by Small Cause Courts but lays down that in order to set-aside a decree passed ex-parte the applicant at the time of presenting his application has to either deposit the amount due under the decree or furnish security for its performance as the Court may direct on a previous application made in that behalf. Thus, the aforesaid defendants were supposed to deposit the amount due to them under the ex-parte decree at the time of presenting the application for setting aside the same.
There is no dispute that according the decree they were supposed to deposit `.86,016.32 at the time of presenting the application under Order 9 Rule 13 C.P.C. The defendants deposited only `.76,918.44 for the purposes of setting aside the ex-parte decree in compliance of Section 17 of the Act. Thus there was a shortage of `.9097.88 (`.9098 in round figure).
In view of the above, the application of the defendants for setting aside ex-parte decree was rejected by the impugned order dated 28.1.2016 as they failed to make the deposit of the entire amount due under the decree at the time of presentation of the application.
I have heard Sri J.J. Munir, learned counsel for the defendant-revisionists and Sri Pankaj Agarwal, learned counsel appearing for the respondents (landlords).
Sri Munir had argued that the defendants had no intention to disobey the mandate of Section 17 of the Act. They had bonafidely deposited the full amount which turned out to be short. The shortage was not substantial and looking to the small shortage, it ought to have been ignored and the tenants should not have been deprived of their valuable right to get their application filed under Order 9 Rule 13 C.P.C. adjudicated.
Sri Pankaj Agarwal has countered the submission by emphasising that the provisions of Section 17 of the Act are of mandatory nature and that there has to be strict compliance of the said provisions. Any delay or shortage in complying with the provisions of Section 17 of the Act dis-entitles the party to get the ex-parte order/decree set aside.
In view of the aforesaid facts and circumstances and the respective arguments of both the sides the only question which crops up for consideration is whether the shortage of `.9098/- in complying with the proviso to Section 17 of the Act can be regarded as negligible and ignored so as to enable the Court to consider the application under Order 9 Rule 13 C.P.C. on its merit.
In Kedarnath Vs. Mohan Lal Kesarwani and others 2002 (1) ARC 186 : 2002 (2) SCC 16 the Apex Court in considering the provisions of Section 17 of the Act laid down that a bare reading of it shows that the legislature have chosen to couch the language of the proviso in a mandatory form and there is no reason to interpret, construe and hold the nature of the proviso as directory. An application seeking to set aside an ex-parte decree passed by a Court of Small Causes must be accompanied by a deposit in the Court of the amount due from the applicant under the decree or in pursuance of the judgment. In the end, agreeing with the various pronouncements of the Allahabad High Court on the point, except for one, the Apex Court held that the provisions of Section 17 of the Act are mandatory and non compliance therewith would entail dismissal of the application for setting the ex-parte decree.
It may be relevant to state that the language of the proviso to Section 17 of the Act is plain and clear which leaves no ambiguity. The use of word 'shall' therein makes the provision mandatory in nature. It is settled in law that where the statutory provisions are plain and unambiguous, the Court shall not interpret the same in a different manner for the reason that the consequence therefrom may be harsh.
It is also well settled principle that if a statute requires an act to be performed by a private person within a specified time, the same would ordinarily be mandatory but the same is not the position when the duty to act is cast upon a public functionary in which case the provision would be directory in nature unless the consequence thereof are specified.
In view of the above principle also the provisions of Sections 17 of the Act which casts an obligation to deposit the amount under the decree upon a private party is certainly mandatory in nature. Accordingly, the deposit of the amount at the time of the presentation of the application under the decree sought to be set-aside is mandatory unless the Court otherwise directs for furnishing security.
In Amar Nath Agarwal Vs. Ist Additional District Judge and others, 1982 ARC 734 a Division Bench of this Court has held that if the deposit made by the tenant falls short of amount required to be deposited, the tenant will be deprived of the benefit, even if shortfall in such deposit was because of tenant's ignorance or without any mala fide intention. It means if there is any shortfall in the deposit, the tenant will be cease of his right to press the application on merits.
In view of the above mandatory provision the argument of substantial compliance may not be available to the defendants but for the maxim of "de minimis non curat lex".
The principle of "de minimis non curat lex" means that "the law does not concern itself about trifles". Thus, the question is if the shortage in deposit can be ignored by applying the said principle.
The aforesaid maxim in relation to Section 17 of the Act came up for consideration before a Division Bench of this Court in Raj Kumar Makhija and others Vs. M/s. S.K. and Co. and others 2012 (9) ADJ 337 (DB). The Division Bench explaining the principle observed that where the shortfall in deposit is of a negligible amount the aforesaid principle can be applied and the shortfall may be ignored. What would be a negligible amount would depend upon the facts of each case. In the above case before the Division Bench the tenants were required to deposit pendente lite and future damages at the rate of `.1,000/- per month but they deposited only at the rate of `.700/- per month. The Court refused to apply the above principle as the shortfall was not held to be of trivial amount.
The Court therein distinguished the case with those cases where the shortfall was held to be of no consequence, inasmuch as in those cases the mistake was in calculation on the part of the Court and those decisions were rendered in different factual background. Ultimately the Court held that on the basis of the above principle the Court can ignore shortfall in deposit of a negligible amount only, otherwise there has to be a strict compliance.
In one case referred by the Division Bench the amount required to be deposited was `.1,944/- and there was deficiency of `.104/-, the shortage was not held to be negligible to attract the principle.
In the case in hand admittedly the amount required to be deposited was `.86,016/- whereas the deposit made was of only `.76,918/- and there was a shortfall of `.9,018/-. The aforesaid shortfall, if examined in the light of the above two illustrations and percentage-wise keeping in mind the amount required to be deposited, it is around 10% of the amount. The shortage of 10% is not negligible to attract the principle of "de minimis non curat lex".
There cannot be any hard and fast rule as to the percentage which may be regarded as negligible in such cases but broadly speaking shortfall of about 1-2 percent of the total amount required to be deposited may in some cases be regarded trivial so as to apply the principle of "de minimis non curat lex" but not more. Accordingly, the shortage of `.9,098/- in deposit the amount under the decree is not trivial to be ignored.
In view of the aforesaid facts and circumstances, the court below has not committed any error of law in rejecting the application of the defendants filed under Order 9 Rule 13 C.P.C. for non compliance of the mandatory provision of proviso to Section 17(1) of the Act.
The revision has no merit and is dismissed with costs upon the parties.
Order Date :- 12.9.2016 Brijesh