JUDGMENT Kamal Kishore, J.
1. This is the civil revision against the judgment and order dated 19.1.1989, passed by Sri U.K. Tripathi, the then learned Xth Additional District Judge, Lucknow, allowing the application of defendant-opposite party for setting aside ex parte judgment, order and decree dated 19.12.1987.
2. The facts giving rise to this revision are that the plaintiff-revisionist has filed a suit under Section 20 Clause (2) (a) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 for recovery of arrears of rent and ejectment. The aforesaid suit was decreed ex parte. No application under proviso to Section 17 of Small Cause Courts Act was filed. The restoration application under Order IX, Rule 13 was filed without complying with the proviso to Section 17. The learned Judge, Small Causes Court has rejected the restoration application for want of compliance of the aforesaid proviso. In revision, the Additional District Judge has set aside the ex parte order and has ordered for restoration of the Small Causes Courts suit. Feeling aggrieved, the plaintiff-revisionist has preferred this revision.
3. Heard arguments and have gone through the records.
4. The jurisdiction to entertain and hear an application to set aside a decree passed ex parte or for a review of judgment by Court of Small Causes is sought to be qualified and narrowed down by imposing condition as to deposit or giving security for performance or compliance by enacting proviso to Sub-section (1). Such a provision fits in the scheme of the P.S.C.C. Act. 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. I 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.
5. The subject behind establishing Small Cause Courts conferred with jurisdiction to try summarily such specified category of cases which need to be and are capable of being disposed of by adopting summary procedure of trial is to secure an expeditious disposal and to curtail the lengthy procedure of litigation. Excepting an order for compensatory costs in respect of false or vexatious claims or defences or an order imposing fine or directing the arrest or detention in the civil prison of any person (except where such arrest or detention is in execution of a decree), orders and decrees of Courts of Small Causes are not appealable, they are only revisable by the High Court (or by district court under Section 115 of C.P.C. as amended in its application to State of U. P.). The jurisdiction to entertain and hear an application to set aside a decree passed ex parte or for a review of judgment by Court of Small Causes is sought to be qualified and narrowed down by imposing condition as to deposit or giving security for performance or compliance by enacting proviso to Sub-section (1). Such a provision fits in the scheme of the P.S.C.C. Act.
6. A bare reading of the provision shows that the Legislature have chosen to couch the language of the proviso in a mandatory form and I 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. I think that it may be filed at any time upto 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. 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 as has been held by the Hon'ble Supreme Court in Kedarnath v. Mohan Lal Kesarwani, 2002 (1) AWC 502 (SC) : 2002 (1) ARC 186 (SC).
7. Since the decretal amount was not deposited and no leave of the Court for furnishing such security for the performance of the decree was obtained, I find that the Lower Revisional Court has erred in allowing the revision and in setting aside the judgment and decree passed by the learned Judge Small Causes Court.
8. The revision is hereby allowed. The impugned judgment and order passed by the Xth Additional District Judge, Lucknow is set aside while the judgment and decree passed by the learned Judge Small Causes Court is maintained. No order as to costs.