Hon’ble Suneet Kumar, J.—Supplementary-affidavit filed today on behalf of the petitioner, is taken on record. Learned counsel appearing for the respondents states that reply to the said affidavit is not required.

2. Heard Sri H.R. Mishra, Senior Advocate assisted by Sri Kamlesh Kumar Mishra, learned counsel appearing for the petitioner and Sri A.K. Pandey, learned counsel for the respondents.

3. 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, 1887 (‘the Act 1887’). 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. The Court vide order dated 16 April 2011 rejected the application being barred by res judicata.

4. The petitioner is assailing the order dated 16 April 2011 passed by the Small Causes Court, Gorakhpur rejecting the application (27-Ga) of the petitioner, and a direction has been sought that the restoration application (4-Ga) dated 23 November 2002 be decided on merit.

5. It is made clear that the order dated 8 September 2006 rejecting the restoration application is not being assailed.

6. It is not disputed by learned counsel for the petitioner that the provisions contained in proviso to Section 17 of the Act 1887 was not complied with. The learned counsel would submit that the language of the proviso is directory in nature and not mandatory, therefore, in the interest of justice, the judgment and decree should be recalled and the suit be heard on merits.

7. In rebuttal, Sri A.K. Pandey, learned counsel appearing for the respondents IInd set would submit that proviso to Section 17 of the Act, 1887 is a mandatory provision and not directory, it is not in dispute that the petitioner had not deposited the entire decretal amount, there is no illegality or infirmity in the impugned order.

8. The Court below vide order dated 8 September 2006 noted that the judgment and decree was passed on 23 December 1998 whereas the application under Order 9 Rule 13 of the C.P.C. was filed supported by an affidavit dated 23 November 2002. It was admitted by the petitioner in the application that due to wrong legal advise, mandatory provisions of Section 17 of the Act 1887 was not complied with, accordingly, the application was rejected. The petitioner on 4 January 2011 moved another application to recall the above mentioned order stating that due to inadequate legal advice, he was not aware of the provisions contained in Section 17 of the Act, 1887. It was further stated that the petitioner realised the mistake, consequently, filed an application to recall the order dated 8 September 2006 which has been rejected by the impugned order being an application for the same cause of action. The record would, thus, reflect that the requirement of depositing the decretal amount in terms of Section 17 of the Act 1887 was not complied by the petitioner.

9. The Apex Court in Kedarnath v. Mohan Lal Kesarwari and others, AIR 2002 SC 5825 : 2002 (1) ARC 186, held as follows:

“A bare reading of Section 17(1) Proviso 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 a