Hon’ble Prakash Krishna, J.—A learned Single Judge of this Court has referred the following question of law for consideration by a larger Bench.

“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 Hon’ble Chief Justice has ordered that the matter be laid before us and that is how the matter has been placed before us.

2. The background facts may be noticed in brief:

The opposite parties herein, the landlords of the property in dispute, filed SCC Suit No. 8 of 2000 against the present applicants, the tenants for ejectment and recovery of arrears of rent and damages. The suit was instituted on 17.4.2000 and was decreed ex parte on 6.9.2002 against the applicants/tenants.

It appears that the applicants herein filed an application for setting aside the ex parte by invoking order IX Rule 13 CPC together with an application seeking permission of the Court under Section 17 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as Act) to make its compliance in the manner that they may be permitted to deposit Rs. 1,13,500/- in cash and furnish security for a sum of Rs. 35,100/-.

The case of the applicant was that monthly rent was Rs. 700/- but the plaintiff-opposite parties wrongly claimed the rent at Rs. 1000/- per month pendente lite & future and thus the ex parte decree treating the rate of pendente lite & future rent as Rs. 1000/- was wrongly passed.

The plaintiff opposite parties filed objection disputing the pleas raised by the applicants. When the matter ultimately came up for hearing, it was revealed that the cash amount deposited by the applicants towards the pendente lite and future damages covers only 117 months whereas the actual months for which they will liable to deposit under the proviso to Section 17 of the Act, were 125 months. The amount was found to be short for eight months i.e.5600/- only (it should be for Rs. 8000/- @ Rs. 1000/- p.m).

In this fact situation, a dispute arose before the Trial Court as to whether the applicants have complied with the proviso to Section 17 of the Act or not. The Court below found that the application for setting aside the ex parte decree is not maintainable as the applicants -tenant failed to comply with the provisions of proviso to Section 17 of the Act, by the order dated 18.8.2011.

3. Feeling aggrieved, the present revision has been preferred by the applicant/tenant.

4. When the revision came up for the purposes for admission before a Learned Single Judge, the question mentioned above was cropped up for consideration.

5. The learned Single Judge expressed disagreement with a decision of another learned Single Judge in the case of Shahjahan Begum v. Smt. Nigar Kausar, 2011(2) ADJ 907.

6. In the case of Shahjahan Begum (Supra), it was held by learned Single Judge that deposit of the whole decretal amount is mandatory and no subsequent application to rectify non-compliance of mandatory provision is maintainable in view of the Apex Court judgment in the case of Kedar Nath v. Mohan lal Kesarwani, 2002(1) ARC 186.

7. Heard Shri P.C. Jain, learned counsel for the tenant-applicants in support of the revision.

8. The learned counsel for the applicant submits that proviso to Section 17 of the Act is procedural in nature and it should be treated as directory. Elaborating the arguments, he submits that the consequence for its non-compliance having not been provided for the word ‘shall ‘ occurring therein should be read as ‘may’. Strong reliance was placed upon Kailash v. Nankhu and others, (2005) 4 SCC 480; R.N.Jadi & Brothers and others v. Subhash Chandra, 2007(