Hon’ble Pankaj Mithal, J.—The defendant-revisionists have preferred this revision under Section 25 of the Provincial Small Cause Courts Act, 1887 against the order dated 28.1.2016 rejecting their application under Order 9 Rule 13 C.P.C. for setting aside the alleged ex parte order dated 16.2.2004 and the consequent decree passed in SCC Suit No. 20 of 2002.

2. The two sons and a daughter of late Anwar Ahmad Sabari instituted Suit No. 20 of 2002 against Ismail Khan for arrears of rent and eviction. Ismail Khan expired after the institution of the suit leaving behind as alleged his widow, four sons and a daughter. On his death, his two sons Mohd. Israil and Atula were substituted and the suit proceeded against them. The notice of the suit could not be served upon them. Therefore, recourse to substituted service was taken and the notice was published in the news-paper. Thereafter the suit was decreed ex parte on 16.2.2004 in their absence.

3. The aforesaid two defendants in the suit on 30.5.2014 filed an application under Order 9 Rule 13 C.P.C. contending that they had no knowledge of the aforesaid ex parte decree. They came to know about it in May, 2014 when the same was put in execution. Accordingly, after inspection of the record on 29.5.2014 they have moved the above application.

4. Section 17 of the Act provides for application of the Code of Civil Procedure in suits cognizable by Small Cause Courts but lays down that in order to set-aside a decree passed ex parte the applicant at the time of presenting his application has to either deposit the amount due under the decree or furnish security for its performance as the Court may direct on a previous application made in that behalf. Thus, the aforesaid defendants were supposed to deposit the amount due to them under the ex parte decree at the time of presenting the application for setting aside the same.

5. There is no dispute that according the decree they were supposed to deposit Rs. 86,016.32 at the time of presenting the application under Order 9 Rule 13 C.P.C. The defendants deposited only Rs. 76,918.44 for the purposes of setting aside the ex parte decree in compliance of Section 17 of the Act. Thus there was a shortage of Rs. 9097.88 (Rs.9098 in round figure).

6. In view of the above, the application of the defendants for setting aside ex parte decree was rejected by the impugned order dated 28.1.2016 as they failed to make the deposit of the entire amount due under the decree at the time of presentation of the application.

7. I have heard Sri J.J. Munir, learned counsel for the defendant-revisionists and Sri Pankaj Agarwal, learned counsel appearing for the respondents (landlords).

8. Sri Munir had argued that the defendants had no intention to disobey the mandate of Section 17 of the Act. They had bonafidely deposited the full amount which turned out to be short. The shortage was not substantial and looking to the small shortage, it ought to have been ignored and the tenants should not have been deprived of their valuable right to get their application filed under Order 9 Rule 13 C.P.C. adjudicated.

9. Sri Pankaj Agarwal has countered the submission by emphasising that the provisions of Section 17 of the Act are of mandatory nature and that there has to be strict compliance of the said provisions. Any delay or shortage in complying with the provisions of Section 17 of the Act dis-entitles the party to get the ex parte order/decree set aside.

10. In view of the aforesaid facts and circumstances and the respective arguments of both the sides the only question which crops up for consideration is whether the shortage of Rs. 9098/- in complying with the proviso to Section 17 of the Act can be regarded as negligible and ignored so as to enable the Court to consider the application under Order 9 Rule 13 C.P.C. on its merit.

11. In Kedarnath v. Mohan Lal Kesarwani and others, 2002 (1) ARC 186 : 2002 (2) SCC 16, the Apex Court in considering the provisions of Section 17