JUDGMENT Hon’ble V.K. Shukla, J.—In the present case, petitioner has been tenant of premises in question. Proceeding for ejectment has been initiated against the father of the petitioner and in the said proceedings so initiated in the shape of JSCC Suit No. 8 of 2001 in the Court of Judge Small Causes, Gorakhpur petitioner’s father did not appear to participate in the said proceeding and ultimately he died on 14.10.2001 and thereafter substitution proceedings were undertaken and steps were undertaken for effecting service upon petitioner and then ex parte decree was passed on 18.1.2007 for ejectment. Petitioner after acquiring knowledge of the same moved an application under Order IX Rule 13 of C.P.C. for setting aside ex parte decree. Said application has been rejected on 28.7.2008 by the Judge Small Causes for non-compliance of Section 17 of Act No. 9 of 1987 and against the same present writ petition has been filed. 2. Supplementary affidavit has also been filed appending therein copy of the reply dated 26.9..2000, photocopy of the notice dated 4.1.2001 and copy of its reply dated 25.1.2001 and receipt of last deposit. 3. Learned counsel for the petitioner Sri R.U. Ansari, contended with vehemence that Section 17 of Provincial Small Cause Courts Act, 1887 is directory in nature and its non-compliance would not have ipso facto resulted in dismissal of application under Order IX Rule 13 of C.P.C. as such liberty be accorded to comply with the provision as contained under Section 17 of Provincial Small Cause Courts Act, 1887 if any taking liberal view in the matter and further here deposit under Section 30(1) of U.P. Act No. XIII of 1972 was already there which could have been conveniently treated as security and as such writ petition be allowed. 4. In order to appreciate respective arguments which has been advanced Section 17 of Provincial Small Cause Courts Act, 1887 is being looked into. “Section 17. 4. In order to appreciate respective arguments which has been advanced Section 17 of Provincial Small Cause Courts Act, 1887 is being looked into. “Section 17. Application of the Code of Civil Procedure.—(1) The procedure prescribed in the Code of Civil Procedure, 1908 (5 of 1908) shall save in so far as is otherwise provided by the 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 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 provision to sub-section (1) the security may be realised in manner provided by Section 145 of the Code of Civil Procedure, 1908 (5 of 1908).” 5. A bare perusal of provision quoted above would go to show that procedure provided for in Code of Civil Procedure has to be followed by Judge Small Causes in all suits cognizable by it and in all procedures arising out of such suits. Proviso has been added 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 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. 6. The purpose of adding this proviso to Section 17 is to protect the interest of landlord, so that unscrupulous tenants against whom rent is due, who do not appear on the date fixed may not take advantage of not paying rent and thereby causing harassment of the landlord. 7. 6. The purpose of adding this proviso to Section 17 is to protect the interest of landlord, so that unscrupulous tenants against whom rent is due, who do not appear on the date fixed may not take advantage of not paying rent and thereby causing harassment of the landlord. 7. Said provision has been subject matter of interpretation before this Court, time and again and view taken is that though provisions are mandatory but in view of procedural aspect, same is not punitive in nature and procedural provision has to be interpreted in such manner and way that it advances justice and facilitate to meet its end. Said judgments have been summed up in case of Narendra Kr. Jain v. Gopal Krishna Mehrotra, 1998(1) ARC 424 as follows : “A bare perusal of the aforesaid provision leaves no doubt in any manner of its mandatory nature and its non-compliance amounts to an illegality in 1986(2) ARC 316, Mijan v. IInd Additional District Judge, Lucknow and others and in 1997 (2) ARC 407 , Mohd. Naeem v. IIIrd Additional District Judge, Lucknow and others it has been held that the provisions of the proviso aforesaid are mandatory in nature and the application under Order IX Rule 13, CPC is liable to be dismissed if requirements of the proviso are not complied with. It is incumbent upon the tenant-defendant to have either deposited the decretal amount in the Court on the date of presenting the application or to have furnished security as the limitation for depositing the amount or furnished the security is 30 days. If the amount is not deposited within the limitation, it will not be treated as compliance of Section 17(1) of the Act. In Vipati v. Kalidin and others, AIR 1951 All 420 the Division Bench of this Court, after considering the various cases held that where any of the necessary conditions required by Section 17 are done after expiry of the period of limitation the application for setting aside of ex-parte decree cannot be considered to be a proper application. This view has been followed in Ayodhya Prasad v. Krishna Kumar, 1992(2) ARC 357. It is therefore, clear that a tenant-defendant cannot get liberty to deposit the amount at his own convenience or choice till the matter is taken up for decision on the application which in course of time may consume several years. 6. This view has been followed in Ayodhya Prasad v. Krishna Kumar, 1992(2) ARC 357. It is therefore, clear that a tenant-defendant cannot get liberty to deposit the amount at his own convenience or choice till the matter is taken up for decision on the application which in course of time may consume several years. 6. In Salikram v. Sitadin, 1997 AWC 96 and Mohd. Yasin v. Jai Prakash, 1988 (2) ARC 575 : 1988 ACJ 701, it has been clearly held that if the tenant defendant fails to deposit the requisite amount or the security as may be permitted by the Court within the period prescribed the Court would be justified in dismissing the application under Order IX Rule 13, CPC for want of compliance of provisions of the proviso to sub-section (1) of Section 17 of the Act. 7. It is also well settled proposition of law that the decretal amount is to be deposited simultaneously with the filing of the application under Order IX Rule 13 CPC and the decretal amount is to be calculated on the date of filing of the application. In Nakse Ram v. IInd Additional District Judge, Aligarh and others, 1992(1) ARC 257 It was held that applicant is required to deposit the security of the decretal amount, which is payable upto the date of filing of the application. In this connection reference may also be made to the decision of this Court in Ram Chandra v. IX th Additional District Judge, 1991 (1) ARC 501 : 1991 AWC 676. 8. The proviso to sub-section (1) of Section 17 has been held to be not punitive in nature. The purpose of provision of Section 17 is to protect the interest of the landlord. This aspect of the matter was considered in Suresh Chand v. Vth Addl. District Judge, Muzaffarnagar, 1991 (2) ARC 545 , in which it was held that Section 17 of the Act being procedural in nature has to be interpreted in such a way as to advance justice and to facilitate to meet its ends. The provision is to be liberally construed and the Court has to see that substantial compliance has been done. It would be too unreasonable and conscionable to throw out tenant applicant’s application under Order IX, Rule 13, CPC on a purely procedural and technical ground. The provision is to be liberally construed and the Court has to see that substantial compliance has been done. It would be too unreasonable and conscionable to throw out tenant applicant’s application under Order IX, Rule 13, CPC on a purely procedural and technical ground. This aspect of the matter also came to be considered by a Division Bench of this Court in the case of M/s Sree Baidyanath Ayurved Bhanwan Ltd. Naini v. Govt. of U.P. and others, 1997 (2) ARC 623; 1996 (28) ALR 368. Though the petition was dismissed on different ground, it was held that maxim ‘de minimise non curat lex’ is attracted in interpreting the provisions of proviso to Section 17(1) of the Act. A reference was made to the decision in Dullan Prasad v. Smt. Rajeshwari Bibi, AIR 1977 All 151, as well as decision of the Supreme Court in Umesh Chand Gandhi v. 1st Addl. District and Sessions Judge and another, JT 1993(6) SC 553. The Hon’ble Supreme Court laid down certain guidelines when the said legal maxim is to be applied. It was observed that : "It is settled law that the Courts of Justice generally do not take triffling and immaterial matters into account except under peculiar circumstances. The strictness or harshness or inflexibility would lead to injustice or miscarriage of justice. Therefore in working out equities the Court would apply in general the maxim ‘de minimis non curat lex’. The Division Bench, therefore, rightly pointed out that the doctrine deserve to be decided in each case. Bonafide mistake may occur in myriad circumstances, but it depends upon each cases. Neither rigid nor exhaustive nor inflexible rule could be laid cutting its amplitude into mathematical formula, in which event also would lead to miscarriage of injustice. Accordingly we find that the Division Bench has rightly left the question to the discretion of the Courts under the Act to consider in each case in the given facts and circumstances whether non-compliance was bona fide and of the tritfle and to grant relief accordingly.” In Mahanand Maheshwari and another v. U.P. State Electricity Board and others, 1992 (2) ARC 41, it was held that if there is any deficiency it may be good at a late stage if there was substantial compliance of the provision of Section 17 of the Act. In view of the fact that the requirement of making deposit under Section 17 of the Act is procedural part, the concept of substantial ‘compliance’ has of necessity, to be imported while interpreting the provision of the proviso to Section 17 (1) of the Act. Court can take liberal view if the amount falls short than the amount required to be deposited under the said provision provided there is bona fide mistake or there are other relevant circumstances which justify the action of the applicant-defendant.” 8. In the present case undisputed position is that ex-parte judgment and decree has been passed against the petitioner on 18.1.2007. An application under Order IX Rule 13 of C.P.C. has been moved on 17.4.2007 and qua the said application at the time of presentation of said application no amount due from him under decree or in pursuance of judgment has been deposited and on account of non-compliance of this particular provision said application has been rejected. Said amount in question which is to be deposited under First Proviso to Section 17 of the Act or furnishing security in lieu of the same is condition precedent for maintaining such application and in case there is slight variation in the said deposit and substantial compliance has been done then liberal view can be taken in the matter which would advance cause of justice. This Court in the case of Shiv Shankar Singh v. IVth ADJ, 1997 (1) ARC 491 has taken the view that amount of rent deposited under Section 30(1) should be adjusted while considering compliance of Section 17(1) of the Act. Petitioner in his application moved in paragraph 1 of application under Order IX Rule 13, CPC had clearly mentioned that in proceedings under Section 30 entire rent was deposited in Court. Whether said amount could have been treated as security or requisite deposit has not at all being adverted to. As this issue is being raised before this Court for the first time, it would be appropriate to raise this issue before the concerned Court and once such an issue is raised same be dealt with in accordance with law, after affording opportunity of hearing to parties concerned. 9. With these observations writ petition stands disposed of 10. No order as to cost. ———