JUDGMENT :

Surya Prakash Kesarwani, J.

Heard Sri K.K. Arora learned counsel for the judgment debtor-revisionist and Sri Rakesh Pande, learned Senior Advocate, assisted by Sri Prashant Rai, learned counsel for the decree holder - respondent.

2. Briefly stated facts of the present case are that undisputedly the decree holder-respondent is the owner and landlord of House No. C-106, Gangapur Awas Vikas Colony, Civil Lines, Rampur. The decree holder-respondent is residing in that house. She had let out the First Floor portion of the aforesaid house on 1.1.2009 to the revisionist-judgment debtor for 11 months on a monthly rent of Rs.7,100/-, under an unregistered rent agreement dated 1.1.2009. The aforesaid house was constructed in the year 1985 and as such the provision of U.P. Act No.13 of 1972 are not applicable.

3. After expiry of 11 months the tenancy was continued to be renewed after 11 months. According to the decree holder-respondent, the judgment debtor-revisionist lastly paid the rent for the month of April 2016 and thereafter when the rent became due he did not pay it. Therefore, by notice dated 5.5.2017 under Section 106 of the Transfer of the Property Act 1882, sent by registered post by decree holder-respondent determined the tenancy of the judgment debtor-revisionist and the arrears of rent were demanded. According to the decree holder-respondent the notice was not complied with by the judgment debtor-revisionist despite service, therefore, she filed JSCC Case No.05 of 2017, before the Judge Small Cause Court, Rampur. Several times summons were sent by registered post and also through process server to the judgment debtor-revisionist but he had not appeared. Therefore, the Court below proceeded ex parte after holding the service of notice upon the judgment debtor-revisionist to be sufficient. The ex-parte judgment and decree was passed on 12.2.2018.

4. According to the judgment debtor-revisionist, he came to know about the aforesaid judgment and decree on 30.06.2018 and immediately thereafter he filed an application for inspection of record through his counsel and the records were inspected on 3.7.2018. An application under Order IX Rule 13 C.P.C. was filed on 3.7.2018 which was registered as Civil Misc. Case No.43 of 2018, without depositing the amount under the proviso to Section 17(1) of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as "the Act 1887") and instead an application was moved for deposit on the next day i.e. on 4.7.2018 and the deposit was made on 12.7.2018. The application under Order IX Rule 13 C.P.C. was rejected by Order dated 18.03.2019, passed by the 3rd Additional District Judge, Rampur, against which the judgment debtor-revisionist has filed the present revision under Section 25 of the Provincial Small Cause Courts Act, 1887.

5. Sri K.K. Arora, learned counsel for the judgment debtor-revisionist submits that summons were not served upon the revisionist and thus he was having no knowledge of the aforesaid S.C.C. Case No.05 of 2017. The sufficiency of service of notice upon the revisionist was incorrectly recorded by the court below. The decree was suffering from error inasmuch as the suit was decreed for rent from January 2009 whereas the admitted claim of the decree holder-respondent was for arrears of rent from May 2016. Subsequently, on the application of the revisionist, the decree was modified by the court below by order dated 26.9.2018. Therefore, in any case the limitation for filing an application under Order IX Rule 13 C.P.C. shall start from 26.9.2018. Mere deposit of the amount of decree by little delay can not be said to be non compliance of the proviso of Section 17(1) of the Act 1887. In support of his submissions he relied upon the judgment of Hon'ble Supreme Court dated 8.8.2018 in Special Leave to Appeal (C) No. 20195 of 2017 (M/s Ved Prakash Mithal and Sons Vs. Union of India).

6. Sri Rakesh Pande, learned Senior Advocate submits that several summons were sent to