1981 Supreme(MP) 286

G. P. Singh, C. J.
Shankarlal v. Kothari and Co. Ratlam.
C. Revn. No. 879 or 1978 (I); Decided on 20-4-1981.

Headnote:(1) Small Cause Court Act, 1925 (Provincial) -- S. 17, Proviso -- application for furnishing security filed within 30 days -- Court passed order thereon beyond 30 days -- party cannot be blamed for delay -- security should be treated to have been filed if furnished at earliest after order.

        (2) Court -- action or inaction of Court -- should not prejudice a party -- principle under -- has application when a party is debarred from performing a duty within specified time but fails due to inaction of the Court.

        (3) Practice -- Court action or inaction of -- should not prejudice a party.

        The application for permission to give security was not taken up either on 25th or 26th but was taken up the Court on 27th August 1977. On that date, the application was allowed and the applicant was granted permission to give security. 28th August happened to be Sunday. The applicant filed a surety bond on 29th August 1977. Notice was then issued to the non-applicant as to why the surety bond be not accepted. The non-applicant did not raise any objection and the surety bond was accepted on 21st September 1977. Evidence on the main application, i. e. application for setting aside the exparte decree, was then recorded. The Court has found that the summons on the applicant was not served, that the applicant came to know of the ex-parte decree on 28th July 1977 and that there was sufficient cause for setting aside the decree, still the application has been refused on the ground that the proviso to section 17 was not complied with as the surety was not furnished within 30 days from the date of the knowledge of the ex-parte decree.

        Held : The question whether the Court below was right in dismissing the application on the ground that the proviso to section 17 was not complied with. In this connection, it is relevant to notice that the application for permission to give security was made within time. If the Court has passed an order on that application on 25th or 26th or in the early hours of 27th August 1977, it would have been possible for the applicant to furnish security within the period of 30 days from the date of the knowledge of the decree. The Court, however, did not pass any order on 25th or 26th August 1977. The revision application says that the order of the Court was passed on 27th August 1977 at the fag-end of the day and this was the reason why security could not be furnished on that date, 28th August being Sunday security could be furnished only on 29th August. I am inclined to accept that the order of the Court allowing the application for furnishing security was passed at the fag-end of the day of 27th August 1977. It was presumably for this reason that the Court itself accepted the security on 29th and the non-applicant when noticed did not raise any objection to the acceptance of the security. The security was finally accepted on 21st September 1977. So the facts are that the applicant filed the application for permission to give security in terms of the proviso to section 17 within time and had the Court not delayed the passing of its order on that application, the applicant could have furnish the security in time. The delay in furnishing the security is essentially because of the Courts inaction in not disposing of the application made by the applicant for permission to give security. It is a well settled principle that any action of the Court or inaction of the Court should not prejudice a party. On this principle, the security furnished on 29th August 1971 should be accepted as within time as if it was furnished on 27th August itself. In holding so I am supported by a decision of Golwalkar, J. in Dassi v. Culli (Civil Revn. No 192 of 1959, decided on 18-1-60, 1960 JLJ Note No. 83). In that case application for permission to give security was made within time but as the president; judge was on leave it could not be disposed of early and when it was disposed of the period of limitation of 30 days had run out. It was held by Golwalkar, J. that the delay in disposal of the application because of absence of the Court could not prejudice a party and the security furnished should be accepted as within time. It is the same principle which I am applying here. Inaction of the Court cannot prejudice a party. As explained above, had the Court taken the trouble of disposing of the application for permission to give security under section 17 on 25th or 26th or in the early hours of 27th August 1971, the applicant would have been in a position to give security within time. The security given on 29th August 1977 should in the circumstances be accepted as within time.

        Learned counsel for the non-applicant submitted that the conditions laid down by the proviso to section 17 are mandatory and that the Court cannot extend limitation. Even assuming that the proviso lays down mandatory conditions, the principle that in action of the Court cannot prejudice a party has its application. In the instant case, I am not extending the limitation but I am protecting the applicant from the prejudice that may be caused to him by the inaction of the Court below. Learned counsel for the non-applicant relied upon a decision of Naik; J. in Brindrabanprasad v. Dashrath (1966 JLJ 78). In this case it was not argued before Naik, J. that inaction or delay on the party of the Court in disposing of application for permission to give security should not prejudice a party. The case is, therefore, not an authority that such a principle is not applicable in giving effect to the conditions laid down by the proviso to section 17. 1960 JLJ SN 83 relied on. 1966 JLJ 78 distinguished. Revision allowed.