Research › Search › Judgment

Allahabad High Court · body

2022 DIGILAW 875 (ALL)

Air Plaza Holding Pvt. Ltd. v. Nitin Malhotra

2022-05-30

NEERAJ TIWARI

body2022
JUDGMENT : 1. Heard Sri Rahul Sripat, learned senior counsel assisted by Sri Sushil Shukla along with Sri Ishir Sripat, learned counsel for the revisionist-defendant and Sri Navin Sinha, learned senior counsel assisted by Sri Ashish Kumar Srivastava, learned counsel for the respondents-plaintiffs. 2. Present revision has been filed challenging the order dated 28.02.2022 passed by Additional District Judge, Court No. 10, Varanasi in Misc. Case No. 389 of 2021 (Air Plaza Holding Pvt. Ltd. Vs. Nitin Malhotra And Another). 3. Learned counsel for the revisionist-defendant submitted that revisionist-defendant is a company incorporated under the Companies Act, 1956 engaged in business of operation of retail outlets of apparel, food, products, FMCG products and other goods throughout India and is currently operating around 500 retail outlet stores in the country. The agreement to lease dated 30.08.2019 was signed by revisionist-defendant and plaintiffs-respondents-plaintiffs for ten years, which provides 60 days of rent free period from the date of possession. The revisionist-defendant entered into possession on 5.10.2019 and was not liable to pay rent till December, 2019. Without waiting for the said free period, he started paying rent from 10.11.2019 and there is no default on his part. Suddenly, he has received notice dated 31.01.2020 terminating the tenancy against the terms and condition of agreement to lease upon which revisionist-defendant has submitted detail reply dated 17.2.2020. Thereafter, plaintiffs-respondents-plaintiffs have filed SCC Suit No. 11 of 2020 before Judge, Small Causes Court/ Additional District and Sessions Judge, Court No. 10, Varanasi. Notices were issued, but the revisionist-defendant could not appear and ultimately, the said suit was allowed by ex parte judgement dated 12.03.2021 accepting the verbatim claim made in plaint. Further, direction was issued to vacate the house in question failing which liberty is given to plaintiffs-respondents to move execution application for eviction and recovery of rent. Judgement was given on 12.03.2021 and decree was prepared on 24.3.2021. 4. Revisionist-defendant has filed application under Order IX Rule 13 Civil Procedure Code, 1908 (in short CPC, 1908) read with Section 17 of The Provincial Small Cause Courts Act, 1887 (hereinafter referred to as “Act, 1887”) dated 26.3.2021 to set aside ex parte decree. Judgement was given on 12.03.2021 and decree was prepared on 24.3.2021. 4. Revisionist-defendant has filed application under Order IX Rule 13 Civil Procedure Code, 1908 (in short CPC, 1908) read with Section 17 of The Provincial Small Cause Courts Act, 1887 (hereinafter referred to as “Act, 1887”) dated 26.3.2021 to set aside ex parte decree. He next submitted that application under Order IX Rule 13 CPC, 1908 has been filed prior to preparation of decree, therefore, in paragraph 14 of the application, it is mentioned that no direction for paying any amount is mentioned in the judgement/ decree due to which he has not deposited any amount in compliance of Section 17 of Act, 1887. He next submitted that after going through decree, he has moved application dated 27.9.2021 for compliance of Section 17 of Act, 1887. 5. Learned counsel for the revisionist-defendant has assailed the impugned order basically on three grounds. First ground is taken about limitation and submitted that Apex Court has taken suo motu cognizance vide order dated 23.09.2021 in Misc. Application No. 665 of 2021 alongwith SMW (C) No. 3 of 2020 in which Apex Court has excluded the period from 15.03.2020 till 02.10.2021 for any suit, appeal, application or proceeding, therefore, his application dated 27.9.2021 may be treated filed within time. He may be given the benefit of judgement of Apex Court and be permitted to comply the Section 17 of Act, 1887 by depositing the decretal amount. For ready reference, relevant paragraph of order of Apex Court is quoted below; “Therefore, we dispose of the M.A. No. 665 of 2021 with the following directions:- I. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 02.10.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2021, if any, shall become available with effect from 03.10.2021.” 6. Second ground is that at the time of filing of application under Order IX Rule 13 CPC, 1908 more than decretal amount has already been paid to plaintiffs-respondents, therefore, there is no need to deposit any additional decretal amount and further, he is regularly paying the rent to plaintiffs-respondents, which is Rs. 7,69,928/-per month till date. Therefore, it was required on the part of Court below to adjust this amount in decretal amount. 7. 7,69,928/-per month till date. Therefore, it was required on the part of Court below to adjust this amount in decretal amount. 7. Third ground is that even in case of non compliance of Section 17 of Act, 1887, while filing application under Order IX Rule 13 CPC, 1908 Court has discretion to condone the delay and permit the revisionist-defendant to deposit the decretal amount as required under Section 17 of Act, 1887. In support of his contention, he has placed reliance upon the judgement of this Court in the matter of Waqf Alal Avlad and Ors. Vs. IInd District Judge, Jaunpur and others; 1992 (1) ARC 86 and submitted that in the similar matter, to make good the deficiency in depositing the amount, Court below has granted time, which was challenged before the Court and Court has held that there is no illegality in the order of Court below. 8. He next submitted that provisions of Section 17 of Act, 1887 is being only procedural in nature has to be interpreted in such a way as to advance justice and to facilitate to meet its ends. He next relied upon the judgement of this Court in the matter of Suresh Chand Vs. VII Additional District Judge, Muzaffarnagar and Ors; 1992 AWC 40 All and submitted that in that matter, Court is of the view that it was not necessary that application under Section 17 of Act, 1887 may be filed first to be followed by the application under Order IX Rule 13 CPC, 1908. 9. He further placed reliance upon the judgement of this Court in the matter of Masih Das and Ors. Vs. Court of Additional District Judge 13th and Ors.; 1992 (19) ALR 529 where the Court has permitted to make the deficiency good by permitting the defendant to deposit the amount so required under Section 17 of Act, 1887 after filing application under Order IX Rule 13 CPC, 1908. 10. Thereafter, he placed reliance upon the judgement of this Court in the matter of Quazi Neemat Ullah Vs. 6th Additional District Judge, Gorakhpur and Ors.; AIR 1993 All 126 in which Court is of the view that if Court finds security insufficient, may give further time to defendant to make good the deficiency. 11. Further, he placed reliance upon the judgement of this Court in the matter of Prem Chandra Mishra Vs. 6th Additional District Judge, Gorakhpur and Ors.; AIR 1993 All 126 in which Court is of the view that if Court finds security insufficient, may give further time to defendant to make good the deficiency. 11. Further, he placed reliance upon the judgement of this Court in the matter of Prem Chandra Mishra Vs. Iind Additional District Judge and Ors.; 2008(9) ADJ 13 . 12. He submitted that in this matter, revisionist-defendant has already paid arrears of rent, cost of suit and interest of JSCC Suit much before passing of ex parte decree and same may be taken into consideration while entertaining application. Court has held that it is required on the part of Court below to consider the said amount, if any, against the decretal amount. Lastly, he submitted that purpose of legislation is to provide justice and application under Order IX Rule 13 CPC, 1908 may not be rejected merely on technical ground ignoring this fact that revisionist-defendant has come before this Court with clean hand and also submitted application dated 27.9.2021 to make good the deficiency by depositing the decretal amount, therefore, order impugned is bad and liable to be set aside. 13. Learned counsel for the respondents-plaintiffs has vehemently opposed the submissions raised by learned counsel for the revisionist-defendant and submitted that so far as first judgement relied upon by the revisionist-defendant about limitation is concerned, same is having no relevance in the present case in light of Section 17 of Act, 1887. The same cannot be bifurcated into two parts i.e. first file application under Order IX Rule 13 CPC, 1908 and thereafter, deposit the money under Section 17 of Act, 1887. In case, there would have been two parts and second has not been complied within the time provided in Section 17 of Act, 1887, this judgement may have its effect, but in present case, it is required on the part of revisionist-defendant to first deposit the decretal amount as required under Section 17 of Act, 1887 and thereafter, file application under Order IX Rule 13 CPC, 1908. Therefore, this judgement has no relevance in the present case. 14. Therefore, this judgement has no relevance in the present case. 14. He next submitted that in the present case, there is no dispute on the point that ex parte judgement was pronounced on 12.3.2021, decree was prepared on 24.3.2021 having the detail of decretal amount, application under Order IX Rule 13 CPC is dated 26.03.2021 i.e. after preparation of decree. Therefore, there is no occasion for the revisionist-defendant to file application under Order IX Rule 13 CPC, 1908 alongwith averment that there is no direction to pay the amount. He has not deposited any amount for compliance of Section 17 of Act, 1887 which is very well mentioned in decree dated 24.3.2021. So far as non mentioning of decretal amount in judgement dated 12.3.2021 is concerned, it is undisputed that no written submission was filed, therefore, Court below allowed the suit in terms of pleadings made in plaint treating correct meaning thereby, whatever is claimed by the plaintiffs-respondents is awarded and amount has not been mentioned. 15. So far as contention of revisionist-defendant that sufficient amount, which is more than decretal amount already given to plaintiffs-respondents is concerned, it is necessary to point out here that it has never been pointed out before the Court below as to whether defendant has deposited any amount or not as no written submission was filed. Therefore, there is no occasion for Court to see as to whether any alleged amount has been deposited or not except to treat the facts mentioned in plaint is correct in absence of written submission. This can only be seen by the Court once the application under Order IX Rule 13 CPC, 1908 is allowed and time is granted to file written submission. Therefore, claim of revisionist-defendant about any amount already deposited cannot be considered for the purpose of meeting the requirement of Section 17 of Act, 1887. It is mandatory requirement on the part of revisionist-defendant to deposit the same. Not only this, revisionist-defendant in application dated 27.9.2021 has admitted this fact that inadvertently, he could not comply Section 17 of Act, 1887 and further time may be granted to comply Section 17 of Act, 1887. It is mandatory requirement on the part of revisionist-defendant to deposit the same. Not only this, revisionist-defendant in application dated 27.9.2021 has admitted this fact that inadvertently, he could not comply Section 17 of Act, 1887 and further time may be granted to comply Section 17 of Act, 1887. He next submitted that this issue came before Apex Court as well as this Court on many occasions and Court is of the firm view that no such additional time can be granted to comply Section 17 of Act, 1887 by depositing the money at later stage. 16. In support of his contention, he has placed reliance upon the judgements of this Court in the matter of Roshan Lal and others Vs. Rishi Pal Singh and others; 2013 (2) ARC 74 , Gorakhnath (Dr.) Vs. Judge, Small Causes Court and others; 2015 (2) ARC 527 and Mohd. Israil and another Vs. Nausaba A Sabari and 5 others; 2016 (3) ARC 448 . 17. Further, he placed reliance upon the latest judgement of Apex Court in the matter of Subodh Kumar Vs. Shamim Ahmad passed in Civil Appeal Nos. 802-803 of 2021 (arising out of SLP (C) Nos. 18118-18119 of 2019 decided on 03.03.2021. In that case, Apex Court after hearing learned counsel for the parties, has framed the very same issue and decided that before filing application under Order IX Rule 13 CPC, 1908, provisions of Section 17 of Act, 1887 has to be complied with. 18. Lastly, he submitted that under the provisions of Section 17 of Act, 1887, law laid down by this Court as well as Apex Court in the matter of Subodh Kumar (supra), there is no illegality in the impugned order and revision is liable to be dismissed with costs. 19. I have considered the rival submissions of learned counsel for the parties and perused the record, provisions of law as well as judgements relied upon the parties. 20. Issue before this Court is as to whether after filing of application under Order IX Rule 13 CPC, 1908 to set aside ex parte decree, compliance of Section 17 of Act, 1887 can be done later on or not? 21. Before coming to issue, it is useful to reproduce the provisions of Section 17 of Act, 1887 as well as Order IX Rule 13 CPC, 1908; Section 17 of Act, 1887 17. 21. Before coming to issue, it is useful to reproduce the provisions of Section 17 of Act, 1887 as well as Order IX Rule 13 CPC, 1908; Section 17 of Act, 1887 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 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 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 proviso 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).” Order IX Rule 13 CPC, 1908 Setting aside decree ex parte against defendant. (2) Where a person has become liable as surety under the proviso 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).” Order IX Rule 13 CPC, 1908 Setting aside decree ex parte against defendant. -In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that there was sufficient cause for his failure to appear when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: Provided also that no such decree shall be set aside merely on the ground of irregularity of service of summons, if the Court is satisfied that the defendant knew, or but for his willful conduct would have known, of the date of hearing in sufficient time it enable him to appear and answer the plaintiff's claim Explanation.-1. Where a summons has been served under Order V, Rule 15, on an adult male member having an interest adverse tothat of the defendant in the subject-matter of the suit, it shall not be deemed to have been duly served within the meaning of this rule. Explanation II.-Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree. 22. The legal provision is very much clear. Section 17 of Act, 1887 clearly provides to deposit the decretal amount in Court or gives security for the performance of decree or compliance with the judgement before filing application for setting aside the decree. 22. The legal provision is very much clear. Section 17 of Act, 1887 clearly provides to deposit the decretal amount in Court or gives security for the performance of decree or compliance with the judgement before filing application for setting aside the decree. There is nothing in section which permits to first file application and thereafter deposit the decretal amount. Order IX Rule 13 CPC, 1908 shall govern with the provisions of Section 17 of Act, 1887. 23. Now under such proposition of law referred and discussed hereinabove, Court shall consider the argument raised by the learned counsel for the parties and judgments relied upon by them. 24. So far as first argument with regard to benefit of limitation in light of relaxation granted by the Apex Court is concerned, it is not applicable in the present matter for the reason that Section 17 of Act, 1887 and Order IX Rule 13 of CPC, 1908 cannot be bifurcated in two parts. There is no such provision to first file application under Order IX Rule 13 of CPC, 1908 and thereafter deposit the decretal amount under Section 17 of Act, 1887. In case, there would have been bifurcation in two parts, revisionist-defendant may claim benefit of limitation, therefore, argument of limitation is having no relevancy in the present case. 25. Further, learned counsel for the revisionist-defendant placed reliance upon the judgments of High Court in the matter of Waqf Alal Avlad and Ors. (supra), Suresh Chand (supra), Masih Das (supra), Quazi Neemat Ullah (supra) and Prem Chandra Mishra (supra) in which Courts granted time to make the good deficiency by permitting the defendant to deposit the amount so required under Section 17 of Act, 1887 after filing the application under Order IX Rule 13 of CPC, 1908. 26. Relevant paragraphs of the aforesaid judgements are quoted below; Waqf Alal Avlad (supra) “The petitioners filed, in the Court of Civil Judge, Jaunpur, suit No. 68 of 1978 for ejectment of Smt. Safia Mariam, respondent No. 3 and for recovery of arrears of rent and damages for the use and occupation of the accommodation in dispute. The suit was decreed ex parte on 3rd May, 1985. Respondent No. 3 applied for setting aside of the ex parte decree on 5th May, 1985. She also deposited a sum of Rs. The suit was decreed ex parte on 3rd May, 1985. Respondent No. 3 applied for setting aside of the ex parte decree on 5th May, 1985. She also deposited a sum of Rs. 1450 in order to satisfy the requirements of Section 17 of Provincial Small Cause Courts Act, 1887. The petitioners objected to the restoration applied for on the ground of alleged non-compliance of Section 17 inasmuch as the deposit made by respondent No. 3 fell short by Rs. 2500. Considering the facts and circumstances of the case, the trial Court allowed respondent No. 3 a week's further time to make the deficiency in the deposit good vide its order dated 28th August, 1985. This order of the trial Court was challenged in Revision No. 260 of 1985 which was decided by the II Additional District Judge, Jaunpur. The learned District Judge affirmed the order of the trial Court and dismissed the revision by means of his judgment and order dated 29th July, 1987. The two orders of the trial Court and the revisional Court are under challenge in the instant writ petition under Article 226 of the Constitution of India. The Court has carefully scrutinised the impugned judgment and orders and is clearly of the opinion that respondent No. 3 has rightly allowed further time to make good the deficiency in deposit. The interest of justice required so. The Court is, further, of the opinion that the impugned judgment and orders stand to promote justice between the parties and do not result in any manifest injustice to the petitioners, which is a condition precedent for exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. For the foregoing reasons the Court declines to interfere with the orders impugned in the writ petition. The petition is, therefore, dismissed summarily.'' Suresh Chand (supra) “Section 17 of the Act being only 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. The Court has to see that substantial compliance has been done. Reference may be made to a case reported in Bhagwan Swaroop v. Mool Chand. The provisions of Section 17 of the Act are only procedural. The provision is to be liberally construed. The Court has to see that substantial compliance has been done. Reference may be made to a case reported in Bhagwan Swaroop v. Mool Chand. The provisions of Section 17 of the Act are only procedural. The Legislature intended that when an ex parte decree is sought to be set aside the judgment-debtor should deposit the decretal amount either in cash or to give security for performance of the decree. It is only to protect the interest of the decree-holder. If the contention of the learned Counsel for the respondent is accepted that would frustrate the object of Section 17 of the Act itself. The use of the word "previous application" is only directory and not mandatory. The only duty cast upon the Court is to ensure, that on the date of allowing the application under Order 9, Rule 13, C.P.C. the entire decretal amount has been deposited or the security has been furnished for the performance. Thus I am of the view that it was not necessary that the application under Section 17 of the Act may be filed first to be followed by the application under Order 9, Rule 13, C.P.C.” Masih Das (supra) “The Plaintiffs obtained an ex parte decree against the Defendants on 30-3-87. The Defendants claim that they came to know of the said ex parte decree on 5-5-87 and immediately on the next day i.e. on 6-5-87 they moved an application, supported by an affidavit, wherein, the' Defendants stated that they had no knowledge of the said suit, as the Defendants were never served with any summons and the said ex parte decree has been obtained without service of any summons on the Defendants. On 14-5-87. the Defendants moved an application for complying with the proviso of Section 17 of the Provincial Small Causes Court Act (hereinafter referred to as 'the Act'). In this application, the Defendants stated that a money-order has been sent of Rs. 975/-towards rent of the house, which has been received by the Plaintiffs during the course of the suit. As such, the Defendants should be permitted only to execute a personal bond for compliance of proviso to Section 17 of the Act. Alongwith application, a photostat copy of the original receipt of the money-order for Rs. 975/-, showing receipt of the aforesaid amount by the Plaintiffs on 21-4-86, was filed. As such, the Defendants should be permitted only to execute a personal bond for compliance of proviso to Section 17 of the Act. Alongwith application, a photostat copy of the original receipt of the money-order for Rs. 975/-, showing receipt of the aforesaid amount by the Plaintiffs on 21-4-86, was filed. The trial court, vide its order dated 14-5-87, permitted the Defendants to deposit half of the decretal amount in cash and security for half of the decretal amount by 10-7-87. However, before the aforesaid date i.e. 10-7-87, the Defendants moved an application on 26-5-87 that the Plaintiffs' suit has been decreed ex parte on 30-3-87, wherein the Plaintiffs had admitted the receipt of a sum of Rs. 975/-from the Defendants on account of rent and mesne profits during the pendency of the case but the said amount has not been adjusted in preparing the ex parte decree. As such, the ex parte decree, may be amended suo-moto. In the aforesaid background on 10-7-87, the Defendants moved another application, saying that so far as the rent is concerned, the Defendants have paid the rent but the exact amount of the decree is not being ascertained. The original record may be summoned, so that the Defendants may deposit the full amount. On the said application, the court directed the original file to be summoned, fixing 23-7-87. On 23-7-87 the court granted one week's time for complying with the court's order dated 14-5-87. On 30-7-87 an application was moved on behalf of the Defendants, seeking one month's time for depositing the decretal amount on the ground that the Defendant Masih Das had fallen ill on the said date. The application was allowed and 15 days' time was granted to the Defendants for complying with the court's order dated 14 5-87. On 4-8-87 the Defendants deposited a sum of Rs. 590.25 paise in cash and furnished security for a sum of Rs. 590.25 paise, which was duly accepted by the trial court. The trial court issued notice on Defendants' application under Order 9 Rule 13 of Code of Civil Procedure to the Plaintiffs and also stayed further proceedings in execution case for ejectment of the Defendants. The Defendants claim that the notice was issued to the Plaintiffs, after the trial court was satisfied that proviso of Section 17 of the Act has been complied with. The Defendants claim that the notice was issued to the Plaintiffs, after the trial court was satisfied that proviso of Section 17 of the Act has been complied with. The Plaintiffs contested the said application on the ground that the Defendants' application, under Order 9 Rule 13 of Code of Civil Procedure is barred by time. It was also contended that the summons were duly served on the Defendants and there is no justification for setting aside the ex parte decree. The Defendants' counsel has made following submissions : Firstly, that the Defendants have sent money-order of Rs. 975/-to-wards rent which was admitted to the Plaintiffs. The ex parte decree was passed by the court, ignoring the aforesaid admission As such, the amount should have been adjusted before judging the compliance of the requirement of the proviso to Section 17 of the Act If the said amount would have been adjusted in the decretal amount, the defents duty com-plied with the requirement of the proviso to Section 17 of the Act within the time allowed by the court. Secondly, the court having itself permitted the Defendants to comply with the requirement of the proviso to Section 17 of the Act and the Defendants having complied with the said requirement within time allowed by the court, the courts below were not justified in taking a view that the court had no jurisdiction to grant time for compliance of proviso to Section 17 of the Act It is a settled proposition of law that no party should suffer for the mistake of the court. Thirdly in any case the decree was corrected by the court as late as on 22-8-88 As such, the court should have examined that the short fall, if any could have been condoned on the Defendants' application for condonation of delay given in the month of May, 1988. The Plaintiffs' counsel has mainly contended that an application, under Order 9, Rule 13 of Code of Civil Procedure shall be deemed to be filed only on the date the judgment debtor complies with the requirement of Section 17 of the Act. There is no power with the court for extending time for complying with the requirement of proviso to Section 17 of The Act. There is no power with the court for extending time for complying with the requirement of proviso to Section 17 of The Act. The counsel contended that the application for condonation of delay was given as late as on 13-5-88 and there was no justification for this inordinate delay. The court below rightly rejected the said application and rightly held that there was no proper application moved on the Part of Defendants under Order 9 Rule 13 of Code of Civil Procedure read with proviso to Section 17 of the Act within time. The revisional court, while dismissing the Defendants' revision held that even though the trial court had no jurisdiction to extend time for complying with the requirement of proviso to Section 17 of the Act, still the Defendants should not be penalised for the mistake of the court and it may be held that the Defendants were entitled to comply with the requirement of proviso to Section 17 of the Act latest by 10-7-87 but the Defendants failed to comply with the said requirement even on 10-7-87 There was no justification for the Defendants to have sought further time on 10-7-87 for complying with the requirement of proviso to Section 17 of the Act. The and 30-7-87, whereby time was advantage of the court's order dated 23-7-87 and 30-7-87, whereby time was further extended for complying with the court's order dated 14-5-87. The revisional court also held that there was no justification for the Defendants to have not complied with the court's order dated 14-5-87 by 10-7-87, as it was open to the Defendants to have ascertained the exact decretal amount by 10-7-07 and should have complied with the requirement of the proviso to Section 17 of the Act latest by 10-7-87. From the above discussion, it is clear that the revisional court has not approached the problem from the correct angle. From the above discussion, it is clear that the revisional court has not approached the problem from the correct angle. The revisional court has not taken into account the fact that there was no fault on the part of the Defendants in complying with the requirement of proviso to Section 17 of the Act within the time allowed by the court: The revisional court having itself held that the Defendants should not be penalised for the mistake of the court, there was no justification for the revisional court to have taken a view that after 10-7-87, the Defendants could not have taken advantage of the courts' order. The revisional court also failed to take into consideration that the Defendants were claiming adjustment of Rs. 975/-towards compliance of the requirement of proviso to Section 17 of the Act right from the very beginning. The said amount should have been adjusted in the decree, is clear from the fact that the said decree has been amended by the court itself in exercise of powers under Section 152 of Code of Civil Procedure. It has been held by the trial court itself that it was due to mistake of the court that a wrong decree was prepared. If the correct decree would have been prepared, the said amount would have been adjusted in the decree and if the said amount would have adjusted in the said decree, still can it be held that the Defendants failed to deposit the requisite amount and failed to furnish security of the requisite amount, as per directions of the court even on 4-8-87. All these matters require-re-consideration of the revisional court. The judgment of the revisional court apparently suffers from the errors pointed out in this judgment. As such, the order of the revisional court is liable to be set aside. The matter may be remanded back to be decided afresh in the light of the observations made in the judgment.” Quazi Neemat Ullah (supra) “The expression” on previous application made by him in this behalf occurring in proviso to Section 17(1) of the Act, does not, in my opinion, necessarily comprehend that an application to give such security for the performance of the decree or compliance with the judgment as the court may direct must be filed before an application for setting aside an ex parte decree is filed. All that the said expression comprehends is that the order of the Court directing defendant-judgment debtor to give such security as it considers necessary, should be passed on an application moved in this behalf before the application for setting aside ex parte decree is entertained. The word 'entertained" in this connection has the meaning assigned to it by the Supreme Court in M/s. Laxmi Engineering Works Ltd. V. Asstt.Commissioner (Judl) Sales Tax Kanpur Range Kanpur, AIR 1966 SC 488 followed in Sri Shyam Kishore v. M.C.D., 1992 (5) JT 335 , In view of the above discussion, I am of the opinion that the surety bonds furnished by the defendant petitioner on 16-11-1989 i.e. within the time specified by the Court vide order dated 10-11-1989, upon its acceptance by the court vide order impugned, has to be taken as due or, in any case, substantial compliance of the proviso to sub-sec. (1) of S. 17 of the Act. Therefore, the order passed by Judge Small Cause Court was not liable to be set aside on the ground that the surety bond was not deposited on the date of filing of the application for setting aside the ex parte decree. Since other pre requisite conditions for setting aside the ex parte decree within the meaning of O.9 Rule 14, C.P.C. were satisfied in the opinion of the trial court, the order passed by the revisional court has to be quashed.” Prem Chandra Mishra (supra) “The object behind proviso of Section 17(1) of Provincial Small Causes Courts Act 1887 is 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. The purpose of adding this proviso to Section 17 is to protect the interest of landlord from further harassment and to secure and ensure payment of rent and to put tenant to term to legally make said deposits. Idea behind said provision is to strike a balance between rival interests so as to be just to law. The purpose of adding this proviso to Section 17 is to protect the interest of landlord from further harassment and to secure and ensure payment of rent and to put tenant to term to legally make said deposits. Idea behind said provision is to strike a balance between rival interests so as to be just to law. In case of exparte decree tenant has been given liberty to move application under Order IX Rule 13 of Code of Civil Procedure on the ground provided therein but under proviso to Section 17 (1) of Provincial Small Cause Courts Act 1887 condition has been imposed so that tenant does not take undue advantage for non-appearance and in this background as condition precedent is it has been made obligatory on the part of the tenant to deposit the amount which is due so that in the event an application for setting aside decree is dismissed the decree in question may be satisfied from the amount deposited or from the security furnished by the judgment debtor. Question arising in the present case is that Revisional Court has recorded finding of fact which has not at all been assailed before this Court that entire amount which is due from tenant under decree qua the same deposit is already there even before passing of decree and once entire amount in question is there can even in this contingency application under Section 17 (1) of Provincial Small Cause Courts Act 1887 can be dismissed for non-compliance of provision of proviso. Amount in question under Section 20(4) of U.P. Act No. 13 of 1972 is permitted to be deposited in any suit for eviction on the ground mentioned in Clause (a) of sub-Section (2) of Section 20 by the tenant on the first hearing of the suit unconditionally and amount which is already deposited under Sub-Section (1) of Section 30 of U.P. Act No. XIII of 1972 is liable to be deducted for enabling tenant to save eviction. Sub-Section (6) of Section 20 clearly provide that any amount deposited by the tenant under Sub-Section (4) or under Rule 5 of Order VX of the First Schedule to the Code of Civil Procedure, 1908 shall be paid to the landlord forthwith on his application without prejudice to the parties pleadings and subject to the ultimate decision in the suits. Sub-Section (6) of Section 20 clearly provide that any amount deposited by the tenant under Sub-Section (4) or under Rule 5 of Order VX of the First Schedule to the Code of Civil Procedure, 1908 shall be paid to the landlord forthwith on his application without prejudice to the parties pleadings and subject to the ultimate decision in the suits. Similarly Sub-Section (4) of Section 30 provides that on any deposit which are made under Section 30 the amount in question which has been deposited can be withdrawn on an application made in this behalf and further sub-Section (6) of Section 30 provides that any deposit made, same shall be deemed that the person depositing it has paid it on the date of such deposit to the person in whose favour it is deposited in the case referred to in sub-section (1) or to the landlord in the case referred to in sub-section (2). Thus, deposits which are made under Sub-Section (4) of Section 20 and under Section 30 of U.P. Act No. 13 of 1972 and under Order XV Rule 5 C.P.C. are in custody of the Court and said amount in question can at any point of time, be withdrawn by the landlord in question, and are readily available to the landlord. In the present case admitted position is that after ex pate decree has been passed application to recall ex-parte decree was made on 24.05.1993 and alongwith the same application under the proviso to Section 17(1) has not at all been moved. Said application was admittedly moved subsequent to the same on 25.02.1994 and in the said application mention was made by him that he has already deposited the rent, cost of suit and interest of JSCC suit much earlier before passing of exparte decree. Said application which has been moved on behalf of tenant was not stating any thing new rather it was sought to be stated by the tenant that in the present case decretal amount is already with the court as he has already paid arrears of rent, cost of suit and interest of JSCC suit much before passing of exparte decree and same may be taken into consideration while entertaining application. Distinction will have to be drawn qua the cases wherein entire amount as mentioned in the proviso to Section 17 of Provincial Small Cause Courts Act 1887 already stands deposited even before passing of exparte decree. In the said event of entire amount in question being prior deposited, information has to be furnished before Judge Small Causes Court, then said fact on verification can be treated as sufficient compliance as provided under the proviso to Section 17 (1) of Provincial Small Cause Courts Act 1887, inasmuch as nothing new has been sought to be done after expiry of the period rather only information has been furnished that said condition has already been complied with and interest of landlord is fully protected as per object and the purpose of Section 17. Tenant cannot be asked to make deposit for second time and furnish security for the second time in the backdrop that prior to passing of decree entire amount due under decree or judgment has already been deposited. Judge Small Causes can make inquiry in the matter of this fact on being apprised as to whether decretal amount is there or not but where decree in question has been passed and decretal amount mentioned as above is not at all there then law laid down by Hon'ble Apex Court in Kedarnath's case (supra) has to be followed in its word and spirit. Facts narrated above clearly makes Kedarnath's case (supra) distinguishable.” 27. It is necessary to point out that this issue has also been considered very well by this Court in the cases of Roshan Lal (supra), Gorakhnath (Dr.) (supra) and Mohd Israil (supra) where the Courts had different view and held that before filing the application under Order IX Rule 13 of CPC, 1908, compliance of Section 17 of Act, 1887 is mandatory. Relevant paragraphs of the aforesaid judgements are quoted below;- Roshan Lal and others (supra) “The respondent No.1 filed an application dated 21.5.2003 under Order IX, Rule 13 C.P.C. for setting aside ex parte decree, which was registered as Misc. Case No.19 of 2003. It was neither accompanied by deposit in the Court the amount due from defendant-applicant i.e. respondent no.1 under the decree nor any security for performance of the decree nor any application for furnishing such security. Case No.19 of 2003. It was neither accompanied by deposit in the Court the amount due from defendant-applicant i.e. respondent no.1 under the decree nor any security for performance of the decree nor any application for furnishing such security. In other words there was no compliance of Section 17(1) of Provincial Small Cause Courts Act, 1887 (hereinafter referred to as "Act, 1887"). Subsequently on 28.10.2003 respondent no.1 filed an application under Section 17 of Act, 1887 seeking permission of Trial Court to furnish security of Rs.9,600/-and deposit of Rs.8003/-by Tender since according to him total amount under decree would come to Rs.17,603/-. The Trial Court, vide order dated 5.12.2003 permitted the deposit by tender subject to the rights of the parties. Besides above, respondent No.1 also filed an application under Section 5 of Indian Limitation Act seeking condonation of delay in filing application for compliance of Section 17 of Act, 1887. The short issue up for consideration before this Court whether there was compliance of proviso to Section 17 (1) of Act, 1887 in the present case or not and whether the view taken by Revisional Court that deposit need not be on the date of submission of the application for setting aside ex parte order but if it is so on the date of hearing of application, that would be sufficient compliance of proviso to Section 17 (1) of Act, 1887, is correct? In my view, Revisional Court has not only misread proviso to Section 17 (1) of Act, 1887 but has also ignored catena of decisions of this Court as also that of Apex Court, which have considered proviso to Section 17 (1) of Act, 1887 wherein it has been held unambiguously that requirement of deposit or application for security must accompany or precede the application for setting aside ex parte decree and not to be seen on the date of hearing of such application. The Apex Court has considered this aspect in Kedarnath Vs. Mohan Lal Kesarwani & Ors., 2002(1) ARC 186. The Court has clearly held that an application moved for compliance of Section 17 at a later stage after filing the application for setting aside ex parte decree cannot be considered as due compliance since it would not fall within the ambit of strict compliance of proviso to Section 17. Paras 9 and 10 of judgment reads as under: “9. The Court has clearly held that an application moved for compliance of Section 17 at a later stage after filing the application for setting aside ex parte decree cannot be considered as due compliance since it would not fall within the ambit of strict compliance of proviso to Section 17. Paras 9 and 10 of judgment reads as under: “9. A bare reading of the provision shows that the legislature have chosen to couch the language of the proviso in a mandatory form and we see no reason to interpret construe and hold the nature of the proviso as directory. An application seeking to set aside an ex-parte decree passed by a Court of Small Causes or for a review of its judgment must be accompanied by a deposit in the court of the amount due from the applicant under the decree or in pursuance of the judgment. The provision as to deposit can be dispensed with by the court in its discretion subject to a previous application by the applicant seeking direction of the court for leave to furnish security and the nature thereof. The proviso does not provide for the extent of time by which such application for dispensation may be filed. We think that it may be filed at any time up to the time of presentation of application for setting aside ex-parte decree or for review and the Court may treat it as a previous application. The obligation of the applicant is to move a previous application for dispensation. It is then for the court to make a prompt order. The delay on the part of the court in passing an appropriate order would not be held against the applicant because none can be made to suffer for the fault of the court. 10. In the case at hand, the application for setting aside ex parte decree was not accompanied by deposit in the court of the amount due and payable by the applicant under the decree. The applicant also did not move any application for dispensing with deposit and seeking leave of the court for furnishing such security for the performance of the decree as the court may have directed. The application for setting aside the decree was therefore incompetent. The applicant also did not move any application for dispensing with deposit and seeking leave of the court for furnishing such security for the performance of the decree as the court may have directed. The application for setting aside the decree was therefore incompetent. It could not have bee entertained and allowed.” The Apex court has referred to the several decisions of this Court which were cited and has approved in the above judgment which are Krishan Kumar v. Hakim Mohd., 1978 ALJ 738, Sharif v. Suresh Chand and Ors. 1979 AWC 256 , Roop Basant v. Durga Prasad and Anr. 1983 1 ARC 565, Mohd. Islam v. Faquir Mohammad 1985 1 ARC 54, Krishan Chandra Seth v. K.P. Agarwal and Anr. 1988 1 ARC 310, Mamta Sharma v. Hari Shankar Srivastava and Ors. 1988 (1) ARC 341, Mohd. Yasin v. Jai Prakash 1988 (2) ARC 575, Purshottam v. Special Additional Sessions Judge, Mathura and Ors. 1991 (2) ARC 129, Ram Chandra (deceased Lrs.) and Ors. v. Ixth Additional District Judge, Varanasi and Ors. AIR 1991 All 223 : 1991(1) ARC 501, Sagir Khan v. The District Judge, Farrukhabad and Ors. 1996 (27) ALR 540 : 1996 (1) ARC 414 , Mohammad Nasem v. Third Additional District Judge, Faizabad and Ors. AIR 1998 All. 125 and Beena Khare v. VIIIth Additional District Judge, Allahabad and Anr. 2000 (2) ARC 616 . It is not disputed that at the time of filing of application i.e. 21.5.2003 neither decretal amount was deposited nor it preceded or accompanied any application for furnishing security for performance of decree. The decisions of this Court in Ashok Kumar Dhiman (supra) relied by Revisional Court would not lend any help to respondent no.1 in view of authoritative pronouncement on the question by Apex Court in Kedarnath (supra). A belated application for purported compliance of Section 17 (1) of Act, 1887 has been deprecated by Apex Court in Kedarnath (supra) as is evident from para 11 of the judgment: “11. The trial court was therefore right in rejecting the application. The District Judge in exercise of its revisional jurisdiction could not have interfered with the order of the trial court. The trial court was therefore right in rejecting the application. The District Judge in exercise of its revisional jurisdiction could not have interfered with the order of the trial court. The illegality in exercise of jurisdiction by the District Court disposing of the revision petition was brought to notice of the High Court and it was a fit case where the High Court ought to have in exercise of its supervisory jurisdiction set aside the order of the District Court by holding the application filed by the respondent as incompetent and hence not entertainable. We need not examine the other question whether a sufficient cause for condoning the delay in moving the application for leave of the court to furnish security for performance was made out or not and whether such an application moved at a highly belated stage and hence not being a 'previous application' was at all entertainable or not." In view of the above, impugned revisional judgment cannot sustain. The writ petition is allowed. The judgment dated 18.01.2005 (Annexure No.14 to the writ petition) passed by Revisional Court is hereby set aside. The decree of ejectment and recovery for arrears of rent passed by Trial Court dated 25.8.2004 passed by Judge Small Cause Court, Bijnor is hereby restored and confirmed. '' Gorakhnath (Dr.) (supra) “The respondent/landlord IInd set filed a suit for eviction and arrears of rent before Small Cause Court at Gorakhpur being Suit No. 106 of 1993. The suit was decreed against the petitioner/tenant on 23 December 1998. The petitioner filed a restoration application under Order 9 Rule 13 of the Code of Civil Procedure on 23 November 2002 for setting aside the ex parte judgment and order. The petitioner admittedly did not deposit the entire decretal amount as required in terms of the proviso to Section 17 of the Small Causes Court Act, 18871. On 8 September 2006, the restoration application was rejected by the Court on the ground that mandatory provision of proviso to Section 17 of the Act 1887 was not complied. On 4 January 2011, the petitioner moved another application (27-Ga) before the Small Causes Court, for recalling the earlier order dated 8 September 2006 and praying that the application under Order 9 Rule 13 of the C.P.C. be decided by permitting the petitioner to deposit the decretal amount. On 4 January 2011, the petitioner moved another application (27-Ga) before the Small Causes Court, for recalling the earlier order dated 8 September 2006 and praying that the application under Order 9 Rule 13 of the C.P.C. be decided by permitting the petitioner to deposit the decretal amount. The Court vide order dated 16 April 2011 rejected the application being barred by res judicata. This Court in the case of Khilla Devi @ Manju Singh v. Vishwa Mohini3, Jai Prakash v. Gulab Singh Rathor4, Dinesh Kumar Dubey v. Ganga Shankar Tiwari5 and in Raj Kumar and another vs. Neeraj Kumar Singhal,6 held that the compliance of Section 17 of the Act is mandatory for the maintainability of an application under Order IX, Rule 13 C.P.C. A Division Bench in Raj Kumar Makhija and others vs. M/s S.K.S. And Company and others7, on a reference made regarding the scope of Section 17 of the Act held that a bonafide mistake on the part of the applicant in not depositing the entire decretal amount cannot be condoned under Section 17 of the Act, the application would be liable to be rejected. The reference before the Court was as follows: “Whether the proviso to Section 17 of the Provincial Small Causes Courts Act completely bars any rectification or removal of a bona fide error after the expiry of the period of limitation when substantial compliance by way of deposit of the decretal amount and furnishing security has been made within the period of limitation particularly when Section 5 of the Limitation Act, 1963 has been made applicable to Order IX Rule 13 of the Code of Civil Procedure?” The Division Bench considered the judgment rendered in Kedarnath (supra) and held that the provisions of Section 17 of the Act is mandatory and non compliance thereof would entail dismissal of the application, non-compliance cannot be condoned or overlooked by the Court. There is no provision in the statute that would provide either for extension of time or to condone the default in depositing the rent within the stipulated period, the Court does not have the power to do so.” Mohd. Israil (supra) “The two sons and a daughter of late Anwar Ahmad Sabari instituted Suit No.20 of 2002 against Ismail Khan for arrears of rent and eviction. Israil (supra) “The two sons and a daughter of late Anwar Ahmad Sabari instituted Suit No.20 of 2002 against Ismail Khan for arrears of rent and eviction. Ismail Khan expired after the institution of the suit leaving behind as alleged his widow, four sons and a daughter. On his death, his two sons Mohd. Israil and Atula were substituted and the suit proceeded against them. The notice of the suit could not be served upon them. Therefore, recourse to substituted service was taken and the notice was published in the news-paper. Thereafter the suit was decreed ex-parte on 16.2.2004 in their absence. The aforesaid two defendants in the suit on 30.5.2014 filed an application under Order 9 Rule 13 C.P.C. contending that they had no knowledge of the aforesaid ex-parte decree. They came to know about it in May, 2014 when the same was put in execution. Accordingly, after inspection of the record on 29.5.2014 they have moved the above application. Section 17 of the Act provides for application of the Code of Civil Procedure in suits cognizable by Small Cause Courts but lays down that in order to set-aside a decree passed ex-parte the applicant at the time of presenting his application has to either deposit the amount due under the decree or furnish security for its performance as the Court may direct on a previous application made in that behalf. Thus, the aforesaid defendants were supposed to deposit the amount due to them under the ex-parte decree at the time of presenting the application for setting aside the same. There is no dispute that according the decree they were supposed to deposit `.86,016.32 at the time of presenting the application under Order 9 Rule 13 C.P.C. The defendants deposited only `.76,918.44 for the purposes of setting aside the ex-parte decree in compliance of Section 17 of the Act. Thus there was a shortage of `.9097.88 (`.9098 in round figure). In view of the aforesaid facts and circumstances and the respective arguments of both the sides the only question which crops up for consideration is whether the shortage of `.9098/-in complying with the proviso to Section 17 of the Act can be regarded as negligible and ignored so as to enable the Court to consider the application under Order 9 Rule 13 C.P.C. on its merit. In Kedarnath Vs. In Kedarnath Vs. Mohan Lal Kesarwani and others 2002 (1) ARC 186 : 2002 (2) SCC 16 the Apex Court in considering the provisions of Section 17 of the Act laid down that a bare reading of it shows that the legislature have chosen to couch the language of the proviso in a mandatory form and there is no reason to interpret, construe and hold the nature of the proviso as directory. An application seeking to set aside an ex-parte decree passed by a Court of Small Causes must be accompanied by a deposit in the Court of the amount due from the applicant under the decree or in pursuance of the judgment. In the end, agreeing with the various pronouncements of the Allahabad High Court on the point, except for one, the Apex Court held that the provisions of Section 17 of the Act are mandatory and non compliance therewith would entail dismissal of the application for setting the ex-parte decree. It may be relevant to state that the language of the proviso to Section 17 of the Act is plain and clear which leaves no ambiguity. The use of word 'shall' therein makes the provision mandatory in nature. It is settled in law that where the statutory provisions are plain and unambiguous, the Court shall not interpret the same in a different manner for the reason that the consequence therefrom may be harsh. It is also well settled principle that if a statute requires an act to be performed by a private person within a specified time, the same would ordinarily be mandatory but the same is not the position when the duty to act is cast upon a public functionary in which case the provision would be directory in nature unless the consequence thereof are specified. In view of the above principle also the provisions of Sections 17 of the Act which casts an obligation to deposit the amount under the decree upon a private party is certainly mandatory in nature. Accordingly, the deposit of the amount at the time of the presentation of the application under the decree sought to be set-aside is mandatory unless the Court otherwise directs for furnishing security. In Amar Nath Agarwal Vs. Accordingly, the deposit of the amount at the time of the presentation of the application under the decree sought to be set-aside is mandatory unless the Court otherwise directs for furnishing security. In Amar Nath Agarwal Vs. Ist Additional District Judge and others, 1982 ARC 734 a Division Bench of this Court has held that if the deposit made by the tenant falls short of amount required to be deposited, the tenant will be deprived of the benefit, even if shortfall in such deposit was because of tenant's ignorance or without any mala fide intention. It means if there is any shortfall in the deposit, the tenant will be cease of his right to press the application on merits. In view of the above mandatory provision the argument of substantial compliance may not be available to the defendants but for the maxim of "de minimis non curat lex". The principle of "de minimis non curat lex" means that "the law does not concern itself about trifles". Thus, the question is if the shortage in deposit can be ignored by applying the said principle. The aforesaid maxim in relation to Section 17 of the Act came up for consideration before a Division Bench of this Court in Raj Kumar Makhija and others Vs. M/s. S.K. and Co. and others 2012 (9) ADJ 337 (DB). The Division Bench explaining the principle observed that where the shortfall in deposit is of a negligible amount the aforesaid principle can be applied and the shortfall may be ignored. What would be a negligible amount would depend upon the facts of each case. In the above case before the Division Bench the tenants were required to deposit pendente lite and future damages at the rate of `.1,000/-per month but they deposited only at the rate of `.700/-per month. The Court refused to apply the above principle as the shortfall was not held to be of trivial amount. The Court therein distinguished the case with those cases where the shortfall was held to be of no consequence, inasmuch as in those cases the mistake was in calculation on the part of the Court and those decisions were rendered in different factual background. Ultimately the Court held that on the basis of the above principle the Court can ignore shortfall in deposit of a negligible amount only, otherwise there has to be a strict compliance. Ultimately the Court held that on the basis of the above principle the Court can ignore shortfall in deposit of a negligible amount only, otherwise there has to be a strict compliance. In one case referred by the Division Bench the amount required to be deposited was `.1,944/-and there was deficiency of `.104/-, the shortage was not held to be negligible to attract the principle. In the case in hand admittedly the amount required to be deposited was `.86,016/-whereas the deposit made was of only `.76,918/-and there was a shortfall of `.9,018/-. The aforesaid shortfall, if examined in the light of the above two illustrations and percentage-wise keeping in mind the amount required to be deposited, it is around 10% of the amount. The shortage of 10% is not negligible to attract the principle of "de minimis non curat lex". There cannot be any hard and fast rule as to the percentage which may be regarded as negligible in such cases but broadly speaking shortfall of about 1-2 percent of the total amount required to be deposited may in some cases be regarded trivial so as to apply the principle of "de minimis non curat lex" but not more. Accordingly, the shortage of `.9,098/-in deposit the amount under the decree is not trivial to be ignored. In view of the aforesaid facts and circumstances, the court below has not committed any error of law in rejecting the application of the defendants filed under Order 9 Rule 13 C.P.C. for non compliance of the mandatory provision of proviso to Section 17(1) of the Act.” 28. Now the picture so emerges before this Court that Courts are having two different view, which ultimately settled while matter came up for consideration before the Apex Court in the matter of Subodh Kumar (supra). Apex Court after considering the controversy, framed issues and first issue framed by the Apex Court is the issue, which is before this Court and quoted below; “From the submissions of the learned counsel for the parties and materials on record, following issues arise for consideration in this appeal:- 1) Whether in the application filed by the respondent-tenant under Order 9 Rule 13, CPC on 25.08.1998, the requirements as contained in Proviso to Section 17 of the Provincial Small Cause Courts Act, 1887, were complied with?” 29. After considering the issue in detail, Court has replied that compliance of Section 17 of Act, 1887 is mandatory before filing of the application under Order IX Rule 13 of CPC, 1908. The Apex Court went to the extent that any deposit made under Section 30(2) of Act, 1997 shall not be adjusted for compliance of Section 17 of Act, 1887. 30. Relevant paragraphs of the judgement of Subodh Kumar (supra) are quoted below;- “This Court has held that compliance of the proviso to Section 17 is mandatory for making application Under Order 9 Rule 13. In paragraph 8 and 9, following was laid down: 8. A bare reading of the provision shows that the legislature has chosen to couch the language of the proviso in a mandatory form and we see no reason to interpret, construe and hold the nature of the proviso as directory. An application seeking to set aside an ex parte decree passed by a Court of Small Causes or for a review of its judgment must be accompanied by a deposit in the court of the amount due from the Applicant under the decree or in pursuance of the judgment. The provision as to deposit can be dispensed with by the court in its discretion subject to a previous application by the Applicant seeking direction of the court for leave to furnish security and the nature thereof. The proviso does not provide for the extent of time by which such application for dispensation may be filed. We think that it may be filed at any time up to the time of presentation of application for setting aside ex parte decree or for review and the court may treat it as a previous application. The obligation of the Applicant is to move a previous application for dispensation. It is then for the court to make a prompt order. The delay on the part of the court in passing an appropriate order would not be held against the Applicant because none can be made to suffer for the fault of the court. 9. In the case at hand, the application for setting aside ex parte decree was not accompanied by deposit in the court of the amount due and payable by the Applicant under the decree. 9. In the case at hand, the application for setting aside ex parte decree was not accompanied by deposit in the court of the amount due and payable by the Applicant under the decree. The Applicant also did not move any application for dispensing with deposit and seeking leave of the court for furnishing such security for the performance of the decree as the court may have directed. The application for setting aside the decree was therefore incompetent. It could not have been entertained and allowed. On the date when the application was filed Under Order 9 Rule 13, i.e., 25.08.1998, neither any deposit was made by the tenant nor there was any previous application seeking permission of the Court to give security. Hence, there being non-compliance of proviso to Section 17, application was liable to be rejected and the trial court vide its order dated 19.04.2007 had rightly rejected the application Under Order 9 Rule 13. The application Under Order 9 Rule 13 Code of Civil Procedure was filed on 25.08.1998, i.e., subsequent to filing of the execution application, thus, at least the amount of Rs. 21,660/-was due. The tenant Respondent has made a deposit Under Section 30(2) in July, 1997 of Rs. 16,800/-and again Rs. 750/-on 18.10.1997 which was rent from 30.06.1997 to 30.11.1997. Thus, on the date when the application was filed Under Order 9 Rule 13, total deposit made by the tenant Under Section 30(2) was only Rs . 17,550/-whereas the amount due as per execution application was Rs. 21,660/-. It was only on 25.11.1998, i.e., much after filing of the application Under Order 9 Rule 13, the tenant deposited amount of Rs. 1,950/- as a rent from 30.11.1997 to 31.12.1998. Thus, even according to the own case of the Respondent tenant on the date when application Under Order 9 Rule 13 was filed, i.e., 25.08.1998, the tenant had not deposited Under Section 30(2) the total amount due, thus, by no stretch of imagination the tenant could have claimed compliance of proviso to Section 17 of Act, 1887. Now, we may proceed to consider as to whether deposit Under Section 30(2) in the facts of the present case could have enured to the benefit of tenant for the purposes of deposit Under Section 17 of Act, 1887. The deposit was made on an application Under Section 30(2) filed by the Respondent tenant. Now, we may proceed to consider as to whether deposit Under Section 30(2) in the facts of the present case could have enured to the benefit of tenant for the purposes of deposit Under Section 17 of Act, 1887. The deposit was made on an application Under Section 30(2) filed by the Respondent tenant. The Court while allowing the application on 23.05.1997 had passed the following order: ORDER 4Kh application Under Section 30(2) of Act No. XIII of 1972 is allowed without prejudice to the respective contentions of the parties. The Plaintiff may deposit the amount if he so likes at his own risk. The parties shall be free to agitate the question of validity of deposit in the S.C.C. Suit pending. File be consigned. When the Plaintiff had claimed exemption from the operation of the Act No. 13 of 1972, it was specific pleading as noted above, how deposit can be made Under Section 30 of the Act by the tenant Respondent. Section 2 begin with the expression that 'Nothing in this Act shall apply'. When there is exemption from the applicability of the Act No. 13 of 1972 as pleaded by the Plaintiff, Section 30 of the Act shall also not be applicable. When Section 30 itself is not applicable to the building, the deposit claimed to be made Under Section 30(2) is wholly irrelevant, for any purposes including for purposes of proviso to Section 17 of Act, 1887.” 31. Now in light of judgment so pronounced by the Apex Court on this issue, law has been settled and accordingly, while filing application under Order IX Rule 13 CPC, 1908, it is mandatory to comply Section 17 of Act, 1887 first and failure of that, no application can be entertained under Order IX Rule 13 CPC, 1908. 32. So far as present case is concerned, facts are not disputed. Undisputedly, SCC Court has pronounced the judgement on 12.03.2021, decree was prepared on 24.03.2021, application under Order IX Rule 13 CPC, 1908 filed on 26.03.2022 and in decree, decretal amuont is mentioned. Therefore, there is no occasion for the revisionist-defendant to skip away with the compliance of Section 17 of Act, 1887 and straightway file the application under Order IX Rule 13 CPC, 1908. Therefore, there is no occasion for the revisionist-defendant to skip away with the compliance of Section 17 of Act, 1887 and straightway file the application under Order IX Rule 13 CPC, 1908. Further, it is also admission on the part of revisionist-defendant that he was aware of this fact and, therefore, he has filed application dated 27.9.2021 seeking time to comply the Section 17 of Act, 1887 as inadvertently he could not comply the same earlier. 33. Therefore, under such facts of the case as well as law laid down by the Apex Court, I found no good ground to interfere in the impugned order. Revisions lacks merit and is accordingly, dismissed. 34. No order as to costs.