JUDGMENT S.P. Mehrotra, J.
1. This writ petition has been filed by the petitioner under Article 226 of the Constitution of India, inter alia, praying for quashing the order dated 24.11.2001, the order dated 5.8.2002 (Annexure-5 to the writ petition) and the judgment and order dated 28.9.2002 (Annexure-6 to the writ petition). It may be noted that copy of the order dated 24.11.2001 has not been filed along with the writ petition, even though in paragraph No. 5 of the writ petition, it has been mentioned that the copy of the said order dated 24.11.2002 has been filed as Annexure-2 to the writ petition. Annexure-2 to the writ petition is copy of the said judgment and order dated 28.9.2002.
2. The dispute relates to a Kothari situated in Civil Lines, Station Road Badaun, Pargana and District Badaun, the details whereof have been given in the plaint of the suit referred to hereinafter. The said Kothari has hereinafter been referred to as "the disputed accommodation".
3. From the allegations made in the writ petition, it appears that the respondent No. 3 filed a suit against the petitioner for ejectment, arrears of rent and taxes etc. in respect of the disputed accommodation. The said Suit was registered as S.S.C. Suit No. 17 of 2000. A copy of the plaint of the said suit has been filed as Annexure-1 to the writ petition.
4. It further appears that the said suit was decreed ex parte by the judgment and order dated 24.11.2001.
5. It further appears that the petitioner filed an application dated 10.12.2001 under Order IX Rule 13 of the Code of Civil Procedure for setting aside the said ex parte decree dated 24.11.2001. A copy of the said application dated 10.12.2001 under Order IX Rule 13 of the Code of Civil Procedure along with copy of its accompanying affidavit has been filed as Annexure-4 to the writ petition.
6. It further appears that by the order dated 5.8,2002 (Annexure-5 to the writ petition), the said application filed by the petitioner under Order IX Rule 13 of the Code of Civil Procedure was dismissed. It was, inter alia, held in the said order dated 5.8.2002 that the petitioner did not comply with the requirements of proviso to Section 17(1) of the Provincial Small Cause Courts Act, 1887.
7. Thereafter, the petitioner filed a revision which was registered as Civil Revision No. 40 of 2002.
By the judgment and order dated 28.9.2002, the said revision was dismissed by the learned District Judge, Badaun.
8. Thereafter the petitioner has filed the present writ petition.
9. I have heard learned counsel for the petitioner and perused the record.
10. Learned counsel for the petitioner submits that the impugned orders passed by the courts below are illegal.
11. Having considered the submission made by the learned counsel for the petitioner, I am unable to accept the same. The courts below have recorded categorical findings that the petitioner failed to comply with the requirements of proviso to Section 17 of the Provincial Small Cause Courts Act, 1887. In view of non-compliance with the proviso to Section 17(1) of the Provincial Small Cause Courts Act, 1887, the application under Order IX Rule 13 of the Code of Civil Procedure was rejected. Section 17 of the Provincial Small Cause Courts Act, 1887 provides as follows :
"17. Application of the Code of Civil Procedure.--(1) The procedure prescribed in the Code of Civil Procedure, 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) Whereas 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."
12. A perusal of the proviso to Section 17(1) of the Provincial Small Cause Courts Act, 1887 shows that if an application is made for setting aside an ex parte decree, then it is incumbent on the applicant, at the time of presenting his application, to either deposit in the Court the amount due from him under the decree or give such security for the performance of the decree as the Court may, on previous application made by him in this behalf, direct.
Thus, the compliance of the proviso to Section 17(1) of the Provincial Small Cause Courts Act, 1887 is mandatory.
13. In Kedarnath v. Mohan Lal Kesarwani and Ors., 2002 (1) AWC 502 (SC), the Apex Court laid down as follows (paragraphs 9 and 10 of the said ARC) :
"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 the time or 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. It could not have been entertained and allowed."
14. The Courts below have categorically held that the petitioner failed to comply with the mandatory requirements of the said provision.
Therefore, the application under Order IX Rule 13 of the Code of Civil Procedure filed by the petitioner was rightly dismissed. No illegality has been committed by the Courts below in passing the impugned orders. No interference is called for in the exercise of writ jurisdiction under Article 226 of the Constitution of India with the impugned orders. The writ petition is liable to be dismissed, and the same is dismissed accordingly.