Hon’ble Sudhir Agarwal, J.—Heard. Since pleadings are complete, the Court proceed to decide the case finally at this stage under the Rules of the Court.

2. The dispute relates to a shop situated at village Tatarpur Laluwala, Mohalla Adarsh Nagar, Najibabad, District Bijnor. The shop is owned by petitioners and respondent Nos. 2 and 3. The aforesaid shop was let out to respondent No. 1. Claiming that construction of shop was made in 1989, provisions of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as “Act, 1972”) are not applicable and since there was a default in payment of rent for more than two years i.e. from 1.9.1998, petitioners and respondent Nos. 3 and 4 vide notice dated 8.2.2001 determined tenancy of respondent No. 1 and thereafter filed suit No. 75 of 2002 for ejectment and recovery of arrears of rent. It was decreed ex parte by the Court of Small Cause, Bijnor vide judgment dated 9.5.2003.

3. 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. In other words there was no compliance of Section 17(1) of Provincial Small Cause Courts Act, 1887 (hereinafter referred to as “Act, 1887”).

4. 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.

5. The said applications were contested by petitioners. The Trial Court vide order dated 25.8.2004 held that there is no compliance of Section 17 of Act, 1887 and accordingly rejected application under Order IX, Rule 13 C.P.C. for setting aside ex parte decree. The Trial Court besides non compliance of Section 17 also recorded finding of fact that there was no sufficient ground explaining absence on the date fixed when ex parte decree was passed. The respondent No. 1 preferred S.C.C. Revision No. 27 of 2004 which has been allowed by Additional District Judge, Court No. 2, Bijnor by means of impugned judgment dated 18.1.2005 observing that for the purpose of Order IX, Rule 13, the Court must take a liberal view. With respect to compliance of Section 17(1) of Act, 1887 he has held that if decretal amount is deposited on the date of hearing of the application, that is sufficient compliance of proviso to Section 17 (1) of Act, 1887 and taking this view the Revisional Court has relied decision of this Court in Ashok Kumar Dhiman v. Smt. Chandrawati Mehta, 1996(1) ARC 76.

6. 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?

7. 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 pre