PETITIONER:

BHAGWAN DASS ARORA Vs.

RESPONDENT:

FIRST ADDL. DISTT. JUDGE, RAMPUR DATE OF JUDGMENT25/07/1983 BENCH:

DESAI, D.A.

BENCH:

DESAI, D.A.

MISRA, R.B. (J)

CITATION:

1983 AIR 954 1983 SCR (3) 493 1983 SCC (4) 1 1983 SCALE (2)40 ACT:

Provincial Small Cause Courts Act, 1887-Proviso to s.

17(1)-Surety Bond-Whether governed by Art. 6 of Schedule 2 of the Court-fee Act or Art. 57 of the Indian Stamp Act- existing conflict of opinion between Madras and Calcutta High Courts-Left unresolved. Surety bond, furnished on Court-fee of Rs. 2, found not duly stamped-Requisite stamp under the Indian Stamp Act supplied. In this situation by preferring one view to the other a litigant cannot be thrown out of the court.

HEADNOTE:

In compliance with the orders of the court under the proviso to s, 17(1) of the Provincial Small Cause Courts Act the appellant, against whom an ex-parte decree had been passed, filed within the period of limitation a surety bond for a certain amount. The surety bond was stamped with a court-fee of Rs. 2. After an application under order 9, r. 13 of the Code of Civil Procedure for setting aside the ex- parte 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 stamp within a week. The appellant supplied requisite stamps for the bond as required by the provisions of the Indian Stamp Act. The trial court dismissed the application on the ground that on or before the date of its filing the appellant had failed to 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 to 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 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, ^

HELD: In the situation of this case the litigant cannot be visited with the consequence of being thrown out of court and shutting the doors of justice in his face. [498 E]

The preferences of Judges should not be allowed to work hardship on litigant in respect of a procedural provision 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 ultimately to be told that he acted according to the view taken by a Pull Bench of a.

494 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. [498 G-H, 499A]

In the instant case what horrible agonizing situation, the 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 preferred the Madras view which required that it should be stamped with court-fee stamp, the 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. [498 E-F]

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2982 of

1983.

Appeal by Special leave from the Judgment and order dated the 9th April, 1982 of the Allahabad High Court in Civil Misc. Writ No. 1907 of 1980.

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

KK Gupta for Respondent No. 3.

A.G. Ratnaparkhi for Respondent Nos. 4 & 6.

The Judgment of the Court was delivered by DESAI, J. Third respondent Smt. Savitiri Devi filed a small causes case No. 43/76 in the Court of Civil Judge, Rampur designated as Court of Small Causes for recovering arrears of rent, electricity charges etc. in