Holding

A litigant cannot be thrown out of court for procedural technicalities arising from conflicting High Court views; once the bond is duly stamped as required by the Indian Stamp Act, the application must be allowed and the ex‑parte decree set aside.

Summary

Bhagwan Dass obtained an ex‑parte decree in a small causes suit and, within the limitation period, applied for security under the proviso to s.17(1) of the Provincial Small Cause Courts Act, 1887. He furnished a surety bond stamped with a court‑fee of Rs 2, which the court later held was not duly stamped under the Indian Stamp Act and directed him to affix the requisite stamps. He complied, but the trial court dismissed his application for setting aside the decree on the ground that the bond was not duly stamped at the time of filing. The High Court, noting a conflict between Madras and Calcutta High Court decisions, adopted the Calcutta view that the bond must be stamped under the Indian Stamp Act and upheld the dismissal. The Supreme Court allowed the appeal, holding that a litigant should not be penalised for procedural technicalities arising from conflicting judicial opinions and that the bond, once properly stamped, satisfied the statutory requirement, thereby setting aside the ex‑parte decree.

Issues considered

Whether a surety bond furnished under the proviso to s.17(1) of the Provincial Small Cause Courts Act, 1887 must be stamped pursuant to Art. 57 of the Indian Stamp Act or Art. 6 of Schedule 2 of the Court‑Fee Act.
Whether the failure to have the bond duly stamped at the time of filing, later cured by affixing the requisite stamps, can be a ground to dismiss an application for setting aside an ex‑parte decree.

Legislation cited

Code of Civil Procedure, 1908s. Order 9 Rule 13
Court Fee Acts. Schedule 2 Art. 6
Indian Stamp Acts. Art. 57
Provincial Small Cause Courts Act, 1887s. 17(1)

Subjects

surety bondstampingProvincial Small Cause Courts Actex‑parte decreeprocedural fairnessconflict of lawIndian Stamp ActCourt‑Fee Actcivil procedureappellate jurisdiction

Judgment

BHAGWAN DASS ARORA
A
v.

FIRST ADDL. DISTT. JUDGE, RAMPUR

July 25, 1983
B
[D. A. DESAI AND R. B. MISRA JJ.] r

Provincial Small Cause Courts Act, 1887-Proviso to s. 17(1)-Surety
Bond-Whether governed by Art. 6 of Schedule 2 oj the Court-fee Act or Art. 57
of the Indian Stan1p Act-existing conflict of opinion betfVeen !tladras and Calcutta
High Courts-Left unresolved. Surety bond furnished on Court-fee of Rs. 2 C
found not duly stamped-Requisite stamp under the Indian Stamp Act supplied.
Jn this situation by preferring one view to thi! o//ier a litigant cannot be thrown
out of the court.

In compliance with the orders of the court under the proviso to s, 17(1)
of the Provincial Small Cause Couits Act the appellant, against whom an
ex-parte decree had been passed, filed within the period of limitation a surety
D
bond· for a certain amount. The surety bond was stamped with a courl-fee of
Rs. 2. After an application under Order 9, r. 13 of the Code of Civil Proce-
dure for setting aSide the ex-par.te decree was· filed by the appellant the court,
on a report from its Munasarim that the surety bond was not duly stamped,
directed the appellant to furnish the ·requisite stamps within a weca. The
appellant supplied requisite stamps for the bond as required by the provisions E
of the Indian Stamp Act. Tl:e trial court dismissed the application on the
ground that on or before the date of its. filing the appellant had failed tt;>
furnish surety bond duly stamped and the surety bond furnished by the
appellant on a court-fee stamp of.Rs. 2 being not a legal document, there was
non-compliance with the proviso t6 s .. 17(1). After an unsuccessful.revision
petition to the District Judge the appellant filed a petition, under Art. 227 in
High COurt. After having noticed the conflict of opinion between the Madras
F
and calcutta High Courts, a .single Judge of the High Court dismissed the
petition and held that the surety bond must be duly stamped as required by
the Indian Stamp Act.

Allowing the appeal,
G
HELD : In the situation of this case the litigant cannnot be visited
with the Consequence of being thrown out of court and shutting the doors of
justice in his face. [498 E]

The pre(erences of Judges should not be allowed to work hardship on H
litigant in respect of a procedural provisiori. Justice cannot be .a playground
by kicking the ball from one court to other depending upon which of conflicting
views will ultimately prevail leaving a litigant on the tenterhooks and ultima-
tely to be told that he acteCt according to the view taken by a Full Bench of a
494 SUPREME. COURT REPORTS tt983j 3s.c.R.
High Court which did nOt find favour with the learned fingle Judge of the High
A . Court of the State in which he resided. This is not justice. This is legalese
which ought to be avoided. [498 G-H, 499A]

In the instant case what horrible agonising situation, thq appellant faced
cannot be guaged. He had,produced the surety bond on the first day duly
stamped as then advised. And had. the learned Single Judge prCferred t'he
Madras view which required that it should be stamped with court-fee stamp
the appellant was fullY protected. To his utter misfortune, the Calcutta vie~
found favour with the learned Single Judge and the appetlant suffered the
irremediable consequence of this later day preference. [498 E-FJ

CIVIL APPELLATE JURISDICTION : Civi[ Appeal No. 2982 of
1983. •
c
Appeal l;>y Special leave fropi the Judgment and Order dated
the 9th April, 1982 of the Allahabad High Court in Civil Misc. Writ
No. 1907of1980.

D . Mrs. Urmila Kapoor, Miss Shushi Kiran and Miss Nishi Puri
for the Appellant.

K.K. Gupta for Respondent No. 3.

A~. Ratnaparkhl for Respondent Nos. 4 & 6.
E
The Judgment of the Court was d'e!ivered by

. DESAI, J. Third respondent Smt. Savitjri Devi filed· a· small
causes case No. 43/76 in the Court of Civil Judge, Rampur designa-
F ted as Court of Small Causes for recovering arrears of rent, electr;city
charges etc. in respect of House No. 368 situated in Adarsh Colony,
Civil Line, Rampur against the present appellant. On service of the
summons, the appellant appeared and contested the suit by filing his
written statement. The suit came to be adjourned for he~ring to
August 6, 1977. On that day, the appellant and his advocate were
G absent and the suit · was decreed exparte. On Augmt 8, 1977,
appellant appeared and moved an application under the proviso to
s. 17 (I) of the Provinicial Small Cause Courts Act, 1887 ('Act' for
short) requesting the Court to permit him .to give such security for
H the performance of the decree in lieu of the liability to deposit in
cash the amount due from him tinder the decree. On the same day,
the Court granted him the permission subject to the condition that ·
the appellant shall deposit Rs. 2700 in cash and for the bal~nce of
liiiAGWAN riAss v. ADDL. DISTT. JUDGE (Desai,~.) 495
the decretal amount, he was directed to ·give an adequate security.
Subsequently on August 31, 1977; the applicant moved an application A
under Order 9 Rule 13 of the Code of Civil Procedure requesting
the Court to set aside the expartc decree submitting that on August
6, 1977 when the suit was called on for hearing, he was prevented by
a sufficient cause from remaining present in person because he had
suddenly taken ill and neither he could remain present nor could he B
infrom his advocate about his illness. Simultaneously, he deposited
R.s. 2700 in cash as directed by the Ccourt. On September 21, 1977,
Manasarim of the Court reported that the security bond furnished
by the appellant was not duly stamped nor was it drawn on an
appropriate stamp paper. The Court directed the appellant to
furnish the requisite stamps within a week. In complianee with this . c
order, the appellant supplied requisite stamps for the bond on
October 5, 1977. The decree-hqlder contested the application for
setting aside the exparte decree inter alia contending that there was
non-compliance with the mandatory provision contained in the
_proviso to sec. 17 (1) of the Act and therefore the appiication
D
purporting to have been made under Order 9 Rule 13 for setting aside
the exparte decree was incomplete and was liable to be dismissed on
this short ground. The trial Court held that the failure of the appel-
lant to file surety _bond duly stamped for the balance of the
decretal amount as directed by the Court in its order dated August
8, 1977 on or before August 31, 1977, when the substantive applica- E
tion under Order 9 Rule 13 was filed and the surety bond submitted
by the appellant on a court-fee stamp of Rs 2 being not a legal
document; there was non-compliance with the proviso to sec. 17 (!),
and therefore the application under Order 9 Rule 13 was liable to
be dismissed. The application of the appellant was accordingly
dismissed. After an unsuccessful revision petition ·to the District F
Court. under section 25 of the Act, the appellant moved a petition
· under Art. 227 of the Constitution in the High Coust of Judicature
at Allahabad.

A learned Single Judge of the High Court after noticing the· G
conflict of opinion between the Madras and Calcutta High Court
preferred the view expressed by the Calcntta High Court that a surety
bond as contemplated by the proviso to sec. 17 (I) of the Act would
be governed by the Indian· Stamp Act. Accordingly the learned
judge held that as the appellant had failed to submit a valid surety ·
H
bond duly stamped, within the. period of limitation, the application
under Order 9 Rule 13 was incomplete and ineffective and has been·
4~6 SUPREME CoURT REPORTS [1983! 3 s.c.R.
rightly dismissed by the Small Causes Court. Hence this appeal by
A · special leave.

Sec. 17 oft.he Act may be extracted :

"17. (I) The procedure prescribed in Code of Civil
Procedure, 1908 shall, save in so far as is otherwise
B
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 pro~eedings arising out of such suits;

Provided that an applicant for an order to set aside a
'
c decree passed exparte 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 such security for
the performance of the decree or compliance with the
judgment as the Court may, on a previous application
D made by him in this behalf, have directed.

(2) ·Where a person has become liable as surety ~.·
under the proviso to sub-section ( l), the security may be
realized in manner provided by section 145 of the Code
E of Civil Procedure, 1908."

The narrow question in this appeal is whether the surety bond
which a judgment·dehtor has to furnish for complying with the order
made under the proviso to sec. 17 (I) would be governed by Art. 6
of Schedule 2 of the Court-feo Act or Art. 57 of the Indian Stamp
F Act. The learned judge referred to the confiicting view; expressed·
by the Madras High Court on the one hand and the Calcutta and
Bombay High Courts on the other and preferred the view taken by
the Calcutta High Court in this behalf. This conflict of opinion may
be noticted first. A full bench of Madras High Court in Kalapati
G Peda Pitchamma & Anr. v. Chiruve/ia(1 ) held that an order made by
the Court under the proviso to sec. 17 (l) i,s nonetheless an
......C.:
order passed under the Code of Civil Procedure as the provisions
of the Provincial Small Cause Courts Act are only supplementary
to the Code of Civil Procedure and accordingly it was held that the
H security bond executed by a surety to comply with an order rriade \

(I) A.LR. 1935 Madras 380.

'
BHAGWAN DASS v. ADDL. DISTT. JUDGE (Desai, J.) 497

by the Court under the proviso would be governed by Art. 6 Sche·
dule 2 of the Court-fee Act and not by the provisions of the Indian A
Stamp Act. The learned judge then referred to Kasemali .V·
Ajovendra Paul and Ors.(1) which in its turn had follwed Babu Rao
Keshav Rao v. Kalavatibai Amrut Rao(1) Wherein it. was- held that
the provisions of the Provincial Small Cause Courts Act cannot be
said to be supplemental to the Code "of Civil Procedure and that 8
the special provision enacted in the proviso t~ sec. 17 (I) of the Act ~'
would have to be complied with on its own force and cannot be
treated as part of Order 9 Rule 13 of the Code of Civil Procedure.
It was noticed that even though the application for setting aside an
exparte decree has fa be made under Order 9 Rule 13 that provision
does not obligate the judgment·debtor to give any security as c,.
condition precedent which the proviso to sec. 17 (I) mandates. . '

After having noticed this conflict, -the learned Judge conclllded
that he preferred the Calcutta view and consequently held that the
surety bond to be furnished for complying with the order made D·
under the proviso to section 17(1) of the Act must be duly stamped r
as required by the Indian Stamp Act. Art. 57 of the Indian Stamp
Act was called in aid of this conclusion. Frankly speaking, we
-~ ·have own reservations whether Art 57 would at all be attracted but
_J we are not disposed to .resolve this controversy in this case and leave
it for a more detailed argument because in this case, as directed by E
the Court, the appellant had furnished the requisite stamps to be t
affixed on the surety bond which was submitted within the period of
limitation.

To recall a few facts, an application praying for an order under F
the proviso to sec. 17 (I) was made within 2 days from the date on r
which the suit was decreed exparte. The suit was decreed exparte
on August 6, 1977 and the application under the proviso to sec. 17
(I) was made on August 8, 1977. On that very day, the Court made
an order fa~ security bond to be furnished for a certain amount and
a bond was furnished with the legal infirmity as found by the learned
Judge of the High Court that instead of it being stamped as required
by the Indian Stamp Act, it was stamped with a court-fee stamp of
Rs. 2.

(I) _A.l.R. 1956 Calcutta 375.
\?) A.J.R. fl940J Bombar 21~.-
498 SUPREME COURT REPORTS [1983) 3 s.c.R. ·

Look at the agony and misery of the appellant. Two premier
A High Courts, Madras and Calcutta, differ on the requirement of a
valid security bond to comply with the proviso to sec. 17 (1). And
the degree of difference is not narrow but irreconcilable. If the
view taken by the Madras High Court had prevailed with the learned
Judge, the matter would have been decided in favour of the appel~
B !ant because he had already furnished a bond stamped with court-fee
stamp of Rs. 2 and it was never suggested that it 'was inadequate,
But as the learned Judge preferred the view taken by the Calcutta
High Court, the surety bond was found to be not duly stamped.
However, when the matter was before the trial court, on the conten•
!ion.being raised by the decree holder the appellant, as directed by
c the Court, did supply .the requisite stamps as requ_i]'ed by ihe
provisions of the Indian Stamp Act. There was no fresh bond but
old bond was duly stamped. In this situation, why should the
appell~nt be penalized by shutting the doors of justice even though
as advised by his lawyer, he acted in the. best possible manner to
D comply with the court's 'order. Uncertainty of the law, as far
as the State of U.P. is concerned, came to be resolved. by the
decision ·of the learned Single Judge of the High Court. Till
then, the trial court was faced with two conflicting views of two
different High Courts. What ought to be the position of an indigent
litigant, advised by his lawer, in this situation left us guessing if not
E wholly bewildered. We are of the opinion that in this situation, the
litigant cannot be visited with the consequence of being thrown out
of court and shutting the doors of jus\ice in his face .. What horrible
agonosing situation, the appellant faced can.not be· gauged. He had
produced the surety bond on the first day i.e. August 8, 1977 duly
F stamped as then, advised. And had the learned Single Judge
preferred the Madras view which required that it should be stamped
with court-fee stamp, t.he appellant was fully protected. To his
utter misfortune, the Calcutta view found favour with the learned
Single Judge and the appellant suffered the irremediable consequence
of this later day preference. We are of the opinion that preferences
G of judges should not be allow to work hardship on litigant in respect
of a procedural provision. In this state oflaw and in view of the
further fact that after the limitation period of 3 J days expired,
Munasqrim of the Court drew the attention of the Court to' the fact
that the surety bond was not duly stamped, the appellant, a litigant,
H cannot be penalized on the pain of being thrown out of court on
this technical ground. Justice ~annot be a' playground by kicking
BHAGWAN DASS v. ADDL. DISTT. JUDGE (Desai, J.) 499

the ball from one court to other depending upon which of the conflict-
ing views will ultimately prevail foaving a litigant on the tenterhooks A
and ultimately to be told that he acted accordingt o the view taken
by a Full Bench of a High Court which did not find favour with the
learned Single Judge of the High Court of the State in which he
resided. This is not justice. This is legalese which ought to be
avoided.
B
We accordingly allow this appeal, set aside the order of the
trial court as well as the order in revision petition by the learned
Addi. Distt. Judge as also the decision of the High Court and grant
the application made by the appellant for setting aside the exparte C
decree and Set aside the exparte decree. The trial of the Suit shall
proceed from the stage where the suit was decreed exparte. In the
circumstances of the case, there will be no order as to costs.

H.S.K. Appeal allowed.