Hon'ble Sibghat Ullah Khan,J.
(Delivered by Prakash Krishna,J) A learned Single Judge of this Court has referred the following question of law for consideration by a larger Bench.
"Whether the proviso to Section 17 of the Provincial Small Causes Courts Act completely bars any rectification or removal of a bona fide error after the expiry of the period of limitation when substantial compliance by way of deposit of the decretal amount and furnishing security has been made within the period of limitation particularly when Section 5 of the Limitation Act, 1963 has been made applicable to Order IX Rule 13 of the Code of Civil Procedure?"
The Hon'ble Chief Justice has ordered that the matter be laid before us and that is how the matter has been placed before us.
The background facts may be noticed in brief:
The opposite parties herein, the landlords of the property in dispute, filed SCC Suit No. 8 of 2000 against the present applicants, the tenants for ejectment and recovery of arrears of rent and damages. The suit was instituted on 17.4.2000 and was decreed ex parte on 6.9.2002 against the applicants/tenants.
It appears that the applicants herein filed an application for setting aside the ex parte by invoking order IX Rule 13 CPC together with an application seeking permission of the Court under section 17 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as Act) to make its compliance in the manner that they may be permitted to deposit Rs.1,13,500/- in cash and furnish security for a sum of Rs.35,100/-.
The case of the applicant was that monthly rent was Rs.700/- but the plaintiff-opposite parties wrongly claimed the rent at Rs.1000/- per month pendente lite & future and thus the ex parte decree treating the rate of pendente lite & future rent as Rs.1000/- was wrongly passed.
The plaintiff opposite parties filed objection disputing the pleas raised by the applicants. When the matter ultimately came up for hearing, it was revealed that the cash amount deposited by the applicants towards the pendente lite and future damages covers only 117 months whereas the actual months for which they will liable to deposit under the proviso to section 17 of the Act, were 125 months. The amount was found to be short for eight months i.e 5600/- only (it should be for Rs.8000/- @ Rs.1000/- p.m).
In this fact situation, a dispute arose before the Trial Court as to whether the applicants have complied with the proviso to Section 17 of the Act or not. The Court below found that the application for setting aside the ex parte decree is not maintainable as the applicants -tenant failed to comply with the provisions of proviso to section 17 of the Act, by the order dated 18.8.2011.
Feeling aggrieved, the present revision has been preferred by the applicant/tenant.
When the revision came up for the purposes for admission before a Learned Single Judge, the question mentioned above was cropped up for consideration.
The learned Single Judge expressed disagreement with a decision of another learned Single Judge in the case of Shahjahan Begum versus Smt. Nigar Kausar 2011(2) ARC 813.
In the case of Shahjahan Begum (Supra), it was held by learned Single Judge that deposit of the whole decretal amount is mandatory and no subsequent application to rectify non compliance of mandatory provision is maintainable in view of the Apex Court judgment in the case of Kedar Nath versus Mohan lal Kesarwani 2002(1) ARC 186.
Heard Shri P.C.Jain, learned counsel for the tenant-applicants in support of the revision.
The learned counsel for the applicant submits that proviso to section 17 of the Act is procedural in nature and it should be treated as directory. Elaborating the arguments, he submits that the consequence for its non compliance having not been provided for the word 'shall ' occurring therein should be read as 'may'. Strong reliance was placed upon Kailash versus Nankhu and others (2005) 4 SCC 480 ; R.N.Jadi & Brothers and others versus Subhash Chandra 2007(6) SCC 420; Sushil Rani versus Attam Parkash AIR 2007 Punjab & Haryana 142.
He further submits that the decision of the Apex Court in the case of Kedar Nath (Supra) is distinguishable on the facts as in the said case the defendant did not file any application for permission to furnish security instead of cash deposit. It was also submitted that the applicants substantially complied with proviso to Section 17 as a major portion of the decretal amount was deposited either in cash or by way of security and the short fall in deposit should be ignored or condoned. The tenants as soon as it came to their knowledge have made short fall good before the Trial Court, though at the time of hearing of the application and after the expiry of the prescribed period of limitation.
Considered the aforesaid submissions of the learned counsel for the applicants and also perused the reference order.
In the application, under section 17 of the Provincial Small Cause Courts Act, the applicants have set out that the tenancy in regard to the property in Suit is at Rs.700/- per month which was not enhanced to Rs.1000/- per month and the Court has granted damages towards pendente lite and future @ Rs.1000/- per month. The said amount is very excessive. The defendant applicants deposited the rent @ Rs.700/- per month along with the cost of the suit. It is appropriate to reproduce Section 17 of the Act, which reads as follows:
17. Application of the Code of Civil Procedure- (1)1[The procedure prescribed in the Code of Civil Procedure, 1908 (5 of 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 deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give ²[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 realized in manner provided by section ³[145] of the Code of Civil Procedure , [1908].
The aforesaid provision came up for consideration before a Full Bench of this Court in Ram Bharose versus Ganga Singh 1931 A.L.J.R 1049, a case strongly relied upon by the applicants' counsel. There, the application for setting aside the ex parte decree was accompanied with the security bond which was large enough to cover the decretal amount. Notices were issued on the application and the application to furnish security was heard and allowed ultimately. It was held therein that the application was filed within time and the order for furnishing the security was passed after 30 days, the proviso to Section 17 stands complied with. There being, no fault on the part of the applicants. The applicant should not suffer for the fault of the Court, if the order to furnish security was not passed by the Court within the prescribed period of limitation. After making an analysis of the various aspects of the case, the following principles have been culled out, therein.
"(1)The applicant must within 30 days file his application either with cash or with a statement that he is prepared to give security (and in the latter case he may, of course, tender the security he proposes) and ask for the direction of the Court.
(2) In the case where he wants to give security, if the Court refuses to direct security, he must deposit cash within the 30 days, or his application will be rejected.
(3) If the Court agrees to direct security, then
(a) it will consider the security already offered, if it has been so offered; or
(b) name security to its satisfaction which must be filed within the 30 days.
(4) If the applicant does not in fact ask for a direction or if, though the applicant does ask for a direction, the Court does not in fact give any direction, but in fact the Court does issue notice, the Court shall be taken to have approved the deposit of cash or the security offered as the case may be.
(5) If filed within the 30 days and accepted by the court expressly or impliedly by the issue of notice the application is a good application, though it will be open to the decree-holder to challenge the nature and sufficiency of the security and to the Court under O.9,R.9 to make such further conditions as it thinks fit."
The question which has been cropped up in the case on hand was not at all in issue before the Full Bench. In the very opening of the judgment of the Full Bench, it is mentioned that the security which was proposed to be furnished was "large enough to cover the decretal amount". Evidently the relied upon decision is of no help to the tenant as it was rendered in a different factual matrix and is distinguishable. Whether, as it is here, shortfall in the cash deposit can be permitted to make good was not in issue there.
The basic question which falls for determination and was urged by the learned counsel for the applicants is whether the proviso to Section 17 is mandatory or directory has been addressed by the Apex Court in the case of Kedar Nath(Supra). The said decision is directly on proviso to Section 17 of the Act and covers the issue. It has been laid down therein that a bare reading of the provision shows that the legislature have chosen to couch the language of the proviso in a mandatory form and we see no reason to interpret, construe and hold the nature of the proviso as directory. It has been held that an application seeking to set aside an exparte decree passed by a Court of Small Causes or for a review of its judgment 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. The Apex Court has also noticed that the proviso has undergone a material change through an amendment brought in by Act No. IX of 1935.
Considered the Objects and Reasons of 1935 amendment, as also the object behind establishing Small Cause Courts with jurisdiction to try summarily such specified category of cases which need an expeditious disposal and to curtail the lengthy procedure of litigation. It is interesting to note that the Apex Court has considered number of cases of different High Courts and observed that so far Allahabad High Court is concerned except in one case, the said proviso has always been held to be mandatory and non compliance therewith would entail dismissal of the application because such non-compliance cannot be condoned or overlooked by the Court. (Emphasis supplied by us).
Relevant portion is extracted below:
A bare reading of the provision shows that the legislature have chosen to couch the language of the proviso in a mandatory form and we see no reason to interpret, construe and hold the nature of the proviso as directory. An application seeking to set aside an exparte decree passed by a Court of Small Causes or for a review of its judgment 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. The provision as to deposit can be dispensed with by the Court in its discretion subject to a previous application by the applicant seeking direction of the Court for leave to furnish security and the nature thereof. 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. The obligation of the applicant is to move a previous application for dispensation. It is then for the Court to make a prompt order. The delay on the part of the Court in passing an appropriate order would not be held against the applicant because none can be made to suffer for the fault of the Court.
In view of the aforesaid authoritative pronouncement by the Apex Court, there is no doubt that the proviso to Section 17 is mandatory.
We may add that in subsequent decision, the Apex Court, in Nasiruddin and Others Versus Sita Ram Agarwal, JT 2003(2) S.C 56, while addressing the issue when a statute can be considered directory or mandatory, has held as follows:
"36. In a case where the statutory provision is plain and unambiguous, the court shall not interpret the same in a different manner, only because of harsh consequences arising therefrom. In E. Palanisamy vs. Palanisamy (Dead) by Lrs. and Others [(2003) 1 SCC 122], a Division Bench of this Court observed :
".The rent legislation is normally intended for the benefit of the tenants. At the same time, it is well settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance with the statutory provisions. Equitable consideration has no place in such matters.........."
37. It is also pertinent to note that the Rent Control Act is a welfare legislation not entirely beneficial enactment for the tenant but also for the benefit of landlord. [See: Shri Lakshmi Venkateshwara Enterprises Pvt.Ltd. vs. Syeda Vajhiunnissa Begum (Smt.) and Others [(1994) 2 SCC 671]. In that view of the matter, balance has to be struck while interpreting the provisions of the Rent Act.
38. The court's jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is well known that in a given case the Court can iron out the fabric but it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot re-write or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words. It is well-settled that the real intention of the legislation must be gathered from the language used. It may be true that use of the expression 'shall or may' is not decisive for arriving at a finding as to whether statute is directory or mandatory. But the intention of the legislature must be found out from the scheme of the Act. It is also equally well-settled that when negative words are used the courts will presume that the intention of the legislature was that the provisions are mandatory in character.
39. Yet there is another aspect of the matter which cannot be lost sight of. It is a well-settled principle that if an act is required to be performed by a private person within a specified time, the same would ordinarily be mandatory but when a public functionary is required to perform a public function within a time-frame, the same will be held to be directory unless the consequences therefor are specified. In Sutherland, Statutory Construction, 3rd edition, Vol.3 at p.107 it is pointed out that a statutory direction to private individuals should generally be considered as mandatory and that the rule is just the opposite to that which obtains with respect to public officers. Again, at p. 109, it is pointed out that often the question as to whether a mandatory or directory construction should be given to a statutory provision may be determined by an expression in the statute itself of the result that shall follow non-compliance with the provision.
At p.111 it is stated as follows :
"As a corollary of the rule outlined above, the fact that no consequences of non-compliance are stated in the statute, has been considered as a factor tending towards a directory construction. But this is only an element to be considered, and is by no means conclusive."
40. Thus, on analysis of the aforesaid two decisions we find that wherever the special Act provides for extension of time or condonation of default, the Court possesses the power therefor, but where the statute does not provide either for extension of time or to condone the default in depositing the rent within the stipulated period, the Court does not have the power to do so.
41. In that view of the matter it must be held that in absence of such provisions in the present Act the Court did not have the power to either extend the period to deposit the rent or to condone the default in depositing the rent."
By applying the above principles and on a plain reading of the proviso to Section 17 of the Act, it may be noticed it also uses the word 'shall'. The deposit of decretal amount and furnishing of security is an act required to be performed by a private person within a specified time, the same would be mandatory.
The compliance of the proviso has to be made by a person within a specified time i.e provision to the filing of the application for setting aside the ex parte decree. Thus the applicant is required to deposit the entire amount due under the decree or to apply for furnishing security which shall cover the entire decreetal amount. If there is a shortfall, the consequence would be that the proviso to Section 17 which is mandatory has not been complied.
The crux of the argument is that the applicants filed the application for furnishing security and had deposited the decretal amount which according to their calculation was due according to them. Subsequently, if it transpires that there is a shortfall in that amount, either the said shortfall be condoned by invoking the principle of substantial compliance or the delay in making the shortfall good be condoned by invoking Section 5 of the Limitation Act.
We may take up the question of applicability of Section 5 of the Limitation Act to such late deposit first.
Section 5 of the Limitation Act reads as follows:
5. Extension of prescribed period in certain cases- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
On a plain reading of Section 5 of the Limitation Act, it would show that it will apply where an appeal or any application has been preferred beyond the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. On a plain reading of Section 5 of the Limitation Act would show that it applies to only (1) appeal or (2) making the application.
It follows that it does not apply to a deposit. Proviso to Section 17 talks about filing of a previous application for furnishing security, previous to the application for setting aside the ex parte decree. Thus the period of limitation for filing such application has been provided for under the said proviso. We can usefully refer a Full Bench judgment of this Court in the case of Messars Janta Cycle and Motor Mart versus Asst.Commissioner(J), II Sales Tax Kanpur Range, Kanpur and another AIR 1969 Allahabad 200.
There the appeal was filed under the U.P Sales Tax Act within time but there was delay in depositing the admitted tax. In that connection, it was held that under section 5 of the Limitation Act, delay may be condoned if a party makes delay in filing an appeal or moving an application. Where party made delay in depositing the admitted tax but the appeal itself was filed within time, it was held that there was no room to give the party the benefit of Section 5. The relevant portion is extracted below:
Hon'ble V.G.OAK,C.J observed as follows:
"Delay may be condoned if a party makes delay in filing an appeal or moving an application. But no such situation arose in the present case. The petitioner made delay in depositing the admitted tax. The appeal itself was filed within time. The Assistant Commissioner rightly held that there was no room to give the appellant the benefit of Section 5, Indian Limitation Act."
Hon'ble PATHAK, J(as he then was) observed as follows:
"Section 5 is not attracted when the question arise whether the delay in depositing the admitted tax should be condoned."
It seems to me that the application made by the petitioner for condonation of delay in depositing the entire amount of admitted tax is not maintainable under section 5 of the Limitation Act."
Noticeably the aforesaid observations have been referred by the Apex Court in Nasiruddin and Others versus Sita Ram Agarwal JT 2003(2) SC 56.
In Nasiruddin and Others versus Sita Ram Agarwal JT 2003(2) SC 56, a similar kind of controversy was up before the Apex Court. The matter was referred before a bench of three judges on account of importance of the question― Whether Section 5 of the Limitation Act 1963 in the matter of default in deposit of rent can be invoked as also the interpretation of word 'shall' occurring in the Rajasthan Premises (Control of Rent & Eviction) Act. The Apex Court examined the provisions of various State Rent Legislations as also its earlier judgment in the case of M/s B.P Khemka Pvt.Ltd. Versus Birendra Kumar Bhowmick and another 1987(2) SCC 407 in addition to its other numerous decisions. The ratio laid down therein is that if there is a provision giving power to Court to extend the prescribed period of limitation and condone the delay in default of payment of rent, the Court can condone the delay but not otherwise. A clear line of distinction has been drawn between the provisions providing applicability of Section 5 of the Limitation Act to the deposits and the legal provision bereft of applicability of Section 5 of the Limitation Act, to such deposits. It was held that where the statute does not provide either for extension of time or to condone the default in depositing the rent within the stipulated period, the Court does not have power to do so. Where statute prescribes, specific period within which the deposit has to be made, provision of section 5 of the Limitation Act can not be extended where the default takes place.
There being no provision under section 17 of the Act for conferring power on Court to condone the delay in complying its conditions, it is not correct to say that Section 5 of the Limitation Act would still be available to such person who has committed default in making the full deposit, and the Court can condone the delay in making the deposit.
Now we take up the question of alleged substantial compliance of the proviso to Section 17 of the Act. It was not disputed by the learned counsel for the applicants that under the decree the applicants' were required to deposit the amount towards pendente lite and future damages for a period of 125 months but as a matter of fact, the amount deposited by them covers the period of 117 months and thus the amount is short for eight months.
The point which falls for consideration is whether the theory of the substantial compliance can be invoked into or not. The proviso to section 17 of the Act has been held to be mandatory by the Apex Court in the case of Kedar Nath(Supra). This being so, the said argument of substantial compliance is not available. We find that similar kind of argument was advanced in connection with the interpretation of Section 39 of U.P Act No.13 of 1972. The matter was referred to a Division Bench in the case of Amar Nath Agarwal versus 1st Addl. District Judge and others 1982 ARC 734. The Division Bench 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 malafide intention. The reason being that Section 39 is mandatory. Logically it follows that if there is any short in the deposit or in the security furnished under the proviso to Section 17 of the Act for any reason, the tenant will be deprived of his right to press the application for setting aside the ex parte decree, on merits.
There being shortfall of amount required to be deposited, the application for setting aside the ex parte decree will not be maintainable, for want of compliance of the proviso to Section 17 of the Act.
In the case of Amar Nath (Supra), the Court also pointed out the difference in between a mandatory rule and the principle of "deminimis non curat lex" (the law does not concern itself about trifles). The Division Bench extracted certain paragraphs from Broom's Legal Maxims and held that a case of substantial compliance of provision should not be confused with a case where the aforesaid principle ( The law does not concern itself about trifles) - could be applied.
What would be trifle has been explained as "where the shortfall in deposit is of a negligible amount." The principle of deminimis has been applied by English and Indian courts is administration of justice. The relevant portion is extracted below:
"To us, it appears that the principle of deminimis can be applied to a case of shortfall in depositing the amounts mentioned in Section 39 if the same is found to be trivial. This is due to the fact that a small error in calculation or in arriving at the amount due would be of a trivial nature and should not deny the tenant of the right conferred by Section 39. In fact, it is difficult to impute any motive to a tenant in a case where a slight error of a trifling nature takes place in calculating the amounts due. It may be accidental or due to erroneous calculations. In such a case even the bonafides of the tenant are not relevant. What is required to be seen is the amount that is not paid or deposited on the due date. If the amount is found to be small which has no consequence, the court would be justified in ignoring the said mistake by extending the deminimis rule to such a case. As to what is a cese deserving the benefit of the aforesaid rules is a question the benefit of the aforesaid rule is a question of fact to be decided in case to case for which no rigid and exhaustive law can be laid down."
In that case, the Court found that the tenant was required to deposit Rs.1944/- and there was a deficiency of Rs. 104/- which was considered not a small amount which could qualify the requirement of getting the benefit of rule deminimis.
Reverting to the facts of the present case, we find that under the decree, the tenants were required to deposit pendente lite and future damages @ Rs.1000/- per month, they deposited @ Rs.700/- per month instead.
The applicants took a conscious decision to deposit the amount at a lower rate, then the amount specified in the ex parte decree itself. This being so, it could not be said by any stretch of imagination that there was a compliance of the proviso to Section 17 of the Act in any manner, or it is a case of bonafide mistake or mistake in calculation.
We find that the learned Single Judge in the case of Smt.Shahjahan Begum (Supra) has rightly held that Section (1) of the Act is mandatory and if it is not complied with, no subsequent application for dispensing with the deposit of seeking leave of the Court for furnishing such security of the decree can be entertained. The law laid down by the learned Single Judge in the aforesaid decision is in conformity with the judgment of the Apex Court in the case of Kedar Nath(Supra).
We find that similar view has been taken in Sunil Kumar Soni versus District Judge, Sultanpur and others 2012 (2) ARC 467 ; Surendra Kumar versus Upper Sessions Judge (Fast Trac) Court no. 4, Aligarh & others 2012(2) ARC 380.
Now, the other decisions relied upon by the tenant may be considered.
The reliance placed on Vishwa Nath Singh versus Gopal Krishna Singhal AIR 1987 Alld 13 by the applicant is misplaced one. In that case, the applicant deposited the decretal amount as per office report and as per the direction given by the Court, so it was held that there is compliance of the proviso. It is not so here.
We may add that it is the duty of the applicants to calculate correct decretal amount as per the decree and Court is not required to get the decretal amount calculated, for the applicant. If there is any shortfall due to calculation made and or for any reason its consequences will follow and will provide no shelter to such applicant.
The observations made in the case of Humum Khan versus 1st Addl Distt.Judge 1983 ALJ 737 by Division Bench; and the observations made in other cases Surendra Nath Mittal versus Dayanand Swarup & another 1986 ALR 24 ; Smt.Ram Piyari versus Budh Sen and others AIR 1977 Alld 390; Waqf Alal Aulad versus II Addl.Disttt.Judge, Jaunpur & another 1991 ALR 576; Narendra Kumar Jain versus Gopal Krishna 1998(1) ARC 424 should be read subject to the subsequent pronouncement of the Apex Court in the case of Kedar Nath (Supra).
Jasbir Singh versus Smt.Vijai Nigam 1984 ARC 134 was rendered in a different factual matrix and is distinguishable on facts. There application was filed before the Court within time but was placed before the Court after expiry of the prescribed period.
The attention of the Court was not invited to the judgment of the Apex Court in Kedar Nath(Supra) and therefore, the decision given in the case of Mohd. Javed Vs. Waqf Kabristan and Masjid Mohalla Urdu Adar, Etawah 2007(3) ARC 61 should be read subject to the ratio laid down by the Apex Court in the case of Kedar Nath(Supra).
The controversy involved in the case of Prem Chandra Mishra versus IInd Additional District Judge 2008(3) ARC 928 was with regard to grant of adjustment of the earlier deposits made by the tenant under sub section (4) of Section 20 & Section 30 of U.P Act No. 13 of 1972 and under Order XV, Rule 5 of CPC with respect to the deposit to be made under the proviso to Section 17 of the Act, The Court held that the tenant is entitled for the adjustment of the amount already deposited under the various provisions, referred to above.
Ultimately, it has been held that in case the amount so deposited is short, after taking into account the previous deposits the application will have to be necessarily dismissed being not competent and maintainable. At the time of presenting the application entire amount should be in deposit. In this case Kedar Nath (Supra) has been followed.
Viewed as above, we answer the question referred to us in the following manner:
1. Any application filed by the tenant/defendant to made good the shortfall either in deposit or security after expiry of period of limitation is of no consequence. The application for setting aside of the exparte decree will be dismissed for non compliance of the said proviso to Section 17 of the Act.
2. Any amount deposited after the expiry of the period of limitation will not be taken into consideration for judging the compliance of the proviso to Section 17 of the Act. However, Court ignores the shortfall in deposit of a negligible amount on the principle of deminimis, as explained above.
3. There being no provision conferring power on the Court to condone the delay in making the deposit, provision of Section 5 of the Limitation Act will not be applicable to deposit contemplated under the proviso to Section 17 of the Act.
The reference is answered accordingly.
Office is directed to place the papers along with our opinion before the appropriate Bench, if possible in the next cause list.