JUDGMENT D.K. Seth, J.
1. Mr. Sharad Malviya, learned counsel for the applicant has assailed the impugned order dated 22nd May, 1999 passed by the learned Additional District Judge, Moradabad in Misc. Case No. 25 of 1998 arising out of M.A.C. Case No. 9 of 1995 which was decreed ex parte on 13th November. 1998. The petitioner having filed an application for setting aside the ex parte decree, the same was registered as Case No. 25 of 1998 which had since been allowed by the impugned order dated 25th May, 1999 directing the petitioner to deposit half of the decretal amount in the Court within 30th May, 1999. In the said order, date 3rd July. 1999 was fixed for proceeding with the case. The restoration was subject to deposit of half of the decretal amount. Mr. Malviya has challenged that part of the order by which the order dated 25th May, 1999 was made conditional to the deposit of half of the decretal amount. He contends that the expression used in Order iX, Rule 13 does not contemplate deposit of the decretal amount. On the other hand, it contemplates payment of cost to the Court or otherwise. The expression 'upon such terms as to costs' is confined to the cost of the suit only. The phrase 'such terms as to costs' is to be read as a whole. The term relates to cost or in other words, the terms is qualified by the expression 'cost' and as such the term cannot include anything else other than cost. The phrase 'payment into Court or otherwise as it thinks fit', according to him, being preceded and followed by 'coma' means that it should be read independent of anything else and the expression 'or otherwise' qualifies only 'payment into Court' meaning thereby, the cost can be paid into Court or to the counsel or otherwise. The expression 'otherwise' does not qualify the expression 'terms'. Thus, according to him, the Court has no jurisdiction to direct deposit of the decretal amount. He next contends that once the ex parte decree is set aside, there is no decree in the eye of law and as such there cannot be any decretal amount in subsistence. Thus, there cannot be any question of depositing the decretal amount and that was the reason for which Order iX, Rule 13 had qualified 'terms' with the expression 'as to cost' which could be paid to the Court or otherwise. The expression so used does not contemplate any other meaning nor can it be conceived of any other interpretation. Alternatively, he also argues that the cost cannot be onerous in case the entire decretal amount is directed to be deposited in that event, it will amount, in fact, refusal to set aside the ex parte decree.
2. In as much as according to him, it would be too onerous to the defendant to get the benefit of setting aside of the ex parte decree, if he is required to deposit the entire decretal amount. Therefore, the Court has to take a judicial view even if, alternatively he argues that the decretal amount may represent the cost within the meaning of the expression 'term' used in Order iX, Rule 13. In support of his contention, Mr. Malviya had relied on the decision in the case of Madan Mohan v. Kanhaiya Lal, AIR 1933 All 601 ; Raj Kumar Soni v. Mohan Meakin Breweries Ltd., AIR 1979 All 370 and Life insurance Corporation of india v. Anjan Kumar Arora and others, AIR 1987 Cal 197, while seeking to distinguish in the case of M/s. Jagdamba General Store and another v. IIIrd Additional District Judge, Dehradun and others. 1998 13) ALR 274.
3. I have heard Mr. Malviya, learned counsel for the appellant at length.
4. This question was elaborately dealt with in the case of M/s. Jagdamba General Stores, (supra) wherein all the decisions cited by Mr. Malviya were cited and discussed in the said decision. After having discussed the said decisions, this Court had arrived at a conclusion that while setting aside the ex parte decree, the Court is empowered to direct deposit of the decretal amount and the expression used in Order iX, Rule 13 has been sought to be interpreted therein in the manner as laid down in paragraph 17 thereof, which is quoted below :
"From the above discussion, it appears that the Court has jurisdiction to impose condition including direction for payment of cost or for deposit of decretal amount or part of it or to furnish security. The expression 'upon such terms as to costs, payment into Court or otherwise as it thinks fit' indicates that the Court is empowered to impose terms. Now what are these terms has been specified in the expression as to the cost, payment into Court or otherwise', The expression 'as it thinks fit' leaves discretion of the Court quite open. It has not been provided that the Court is not empowered to use its discretion to the extent of direction for deposit of decretal amount or furnishing of security. The argument as raised by Mr. Arora that the said rule has not referred to decretal amount or furnishing of security, cannot be sustained in view of decisions cited hereinbefore, some of which were rendered by the Division Bench of this Court. Then again, absence of mention of decretal amount or security, cannot be a ground for excluding the deposit of decretal amount or a part thereof furnishing security in view of the expression used 'as it thinks fit', which has given the Court discretion with regard to the terms. Such terms, in my view, refer to cost, or payment into the Court or otherwise. The word 'otherwise' is wide enough to include terms of deposit of decretal amount of furnishing security. Interpretation has to be made in consonance with the scheme of the said rule, if a restraint meaning is imported, in that event, the expression 'otherwise' as 'as it thinks fit' shall be meaningless and redundant. By use of the phrase 'otherwise' it thinks fit' has kept the discretion quite open to the extent that has been laid down in the cases cited hereinbefore."
5. Thus, the question which is raised by Mr. Malviya stands already answered in the said decision.
6. The distinction that has been sought to be made by Mr. Malviya relying on the decision in the case of Madan Mohan, (supra) is to the extent that while directing to deposit, the Court has to bear in mind that the order should not be punitive for the defendant having regard to the facts and circumstances of the case and there should be sufficient reasons for imposing such terms. In the said case, it was held that the Order iX, Rule 13 makes it absolutely clear that the Court may in appropriate cases direct the party applying to make such payment into Court of such sums as the Court thinks proper. This expression has been construed to mean a portion of the decretal amount : see the case of Shyam Lal Sahai v. Ram Nardin Lal Seth, AIR 1920 Pat 660. After laying down the said ratio, the Court had proceeded to observe :
"After having heard all that can be said on behalf of the respondent on this point we are satisfied that one should not punish the defendant in the present case by refusing to restore the case. The order dated 26th May, 1932 by which the Court directed the plaintiff to take steps for substitution of names lulled the defendant into a sense of security and he might well have thought that the case had been adjourned and it would have served no useful purpose for him to have been present on 31st May, 1932 nor was it possible for him under the circumstances mentioned when he was performing the funeral obsequies of his mother to have been present. The mere fact that another case of his was going on in another Court is no reason to suppose that he was adopting any proceedings calculated to delay the present suit because we have been told that in the other case all that was being done was that the counsel for the other side was arguing the case the arguments on behalf of the present applicant having already been concluded."
7. Thus, the said decision shows that a reasonable approach is to be taken while directing to deposit of the decretal amount. The Court has discretion in the manner which is also the view taken in the case of M/s. Jagdamba General Stores (supra). The decision in the case of Raj Kumar Soni (supra) were cited by Mr. Malviya to distinguish on the question that if the Court comes to a conclusion that the defendant had no knowledge of the date fixed and there was a failure in giving notice of the date fixed, he could not be saddled with any term and condition for making payment into Court. It was further held that if the Court is satisfied that the applicant was prevented by sufficient cause from appearing when the suit was called for hearing, then the Court may make an order setting aside the decree and doing so it may impose such terms as to costs payment into Court or otherwise it thinks fit. According to Mr. Malviya, the fitness of things, which is to be taken into consideration by the Court, means the facts and circumstances of the case in order to show whether the defendant is really guilty or not. The direction of such terms is dependent on the basis of the weighment of the situation with regard to the delay, laches or guilt on the part of the defendant or his conduct or attempt to delay the process. The reading of the said decision shows that the Court had approved that :
"The word 'otherwise' would indicate that it was open to the Court to direct furnishing of security or make any such order. The words 'as it thinks fit' permits the Court to pass any such order as to payment of costs or payment of money into Court or furnishing of security etc. It is not incumbent on the Court to pass an order imposing costs or payment of money into Court or furnishing of security wherever an ex parte decree is being set aside. In a suitable case, the Court may pass an order imposing costs, directing payment into Court of the decretal amount or a part thereof and also furnishing of security for the balance, but such cases will depend on compelling facts so as to safeguard the interest of the plaintiff. It is also permissible for the Court not to pass any order imposing any of these terms if it is satisfied that it is not necessary to do so in the interest of justice. It would, therefore, appear that the imposition of these terms would vary from case to case depending on the circumstances of each case. But it must be borne in mind that there was judicial precedents which lay down the guidelines for the sake of uniformity in the administration of justice. It is necessary that these guidelines are followed except where it is necessary to lay down new guidelines."
8. This decision as quoted above also supports the view taken in the case of M/s. Jagdamba General Stores (supra). The said decision had further relied on the decision in the case of Alimohammad v. Manaklal Ratanlal, AIR 1960 Madh Pra 234. by a Division Bench wherein it was held that :
"But the defendant contends that on principle, the Court should not affix any condition onerous on the defendant unless it finds that he was at fault ; that is to say, it can be imposed only if the defendant has been guilty, of some omission, which, however, the Courts find not serious enough to justify the maintenance of the ex parte decree.
Stated thus, this principle is almost obvious, there is case law ; but it need not be discussed, as it enunciates only the principle that no litigant should be burdened unless found to be at fault. If there has been no due service of summons, the defendant is not to blame and unless he acquiesces. the order under Order iX, Rule 13 should be unconditional. Thus, in every case where the propriety of imposing a condition and its reasonableness are in issue, the question would be, is the defendant negligent in some measure at least and, is the condition proportionate to the seriousness of the omission?"
9. Relying on the proposition in the said case, it was held that unless the party is at fault, normally no condition should be imposed for payment of money or furnishing security while setting aside the ex parte decree. It was also clear that the Court could always award costs to compensate the other side for the inconvenience and loss caused to the said parly. Thus, the said decision also supports the view taken in the case of M/s. Jagdamba General Stores (supra).
10. The decision in the case of Life insurance Corporation (supra) taken by the Calcutta High Court has proceeded on the basis that Life insurance Corporation is not a party unable to make good the dicreetal amount, and had held to the extent as mentioned hereinafter :
"On a careful consideration of the points thus raised by the counsel for the appellant we find much substance in them. While allowing an application for restoration the Court can certainly impose conditions and they are at times done. But such conditions must be reasonable and must have some Justification having regard to the attending circumstances. Such conditions cannot be imposed Just arbitrarily. Here in the present case neither of the conditions imposed by the learned Judge can be justified as those imposed in proper exercise of judicial discretion. The defendant/petitioner in the proceeding for restoration is a statutory Corporation so that there is no reasonable ground for apprehensions that the plaintiffs' claim if it succeeds is likely to be delayed or defeated : such a defendant has put forward a reasonable defence : though there was delay in the carriage of proceeding, it was not due to any laches on the part of the defendant : defendant's non-appearance resulting in the ex parte decree was accidental and due to circumstances not within their control. In those circumstances, it was not just and proper to call upon the defendant to deposit the major part of the plaintiffs claim. It is still more difficult to support the Judge's direction for payment of the interest accruing on the deposit to the plaintiffs. There can be no reason for allowing the plaintiffs to enjoy the income out of money which is yet to be decreed, if at all, in favour of the plaintiffs."
11. Thus, the said decision was taken on the finding that the defendant was not at fault and it was not within their control and that the defendant being a Corporation, there cannot be any apprehension on the part of the plaintiff that it would be unable to recover the decretal amount if the suit is decreed or that the Corporation would not be able to meet the decretal dues afterwards. It was further found on fact that there was no attempt to delay the process and that the Life insurance Corporation had a reasonable defence. Thus the said decision also does not affect the ratio laid down in the case of M/s. Jagdamba General Stores (supra).
12. Looking at the present facts and circumstances of the case on the basis of proposition, as has been sought to be made out by Mr. Malviya, in the present case, it appears that the learned Court below in its order dated 22nd May, 1999 had observed that the defendant was intentionally absent in order to avoid the responsibility. Yet in such circumstances since the evidence was already closed, therefore, the defendant was permitted to advance its arguments. Therefore, the Court had passed an order that the order for setting aside the award to be conditional of depositing half of the decretal amount within the time fixed. Thus, it appears that the Court had given reason after having come to a conclusion that the defendant was at fault. Therefore, even on the ratio as has been propounded by Mr. Malviya, there is nothing which makes me inclined to interfere with the order.
13. For all these reasons, the revision falls and is, accordingly, dismissed. However, there will be no order as to costs.