JUDGMENT :

1. Heard Sri Ramendra Asthana, learned counsel for petitioners.

2. Present petition has been filed seeking following reliefs:-

“(a) set aside the judgments and orders dated 21.02.2023 passed by learned Additional District and Sessions Judge H.J.S. Banda, dismissing the S.C.C. Revision No. 19/2019, (Raj Kumar @ Rajendra Srivas, now dead through L.Rs., Mohd. Kaukab Azim Rizvi and another) and 12.12.2019 passed by learned Civil Judge (Junior Division) Banda rejecting Application 8(Ga) in Misc. Case No. 49/70/2018 Raj Kumar @ Rajendra Srivas vs. Mohd. Kaukab Azim and another) and 05.09.2013 passed by learned Civil Judge, Junior Division, Banda decreeing ex parte S.C.C. Suit No. 04/2011 Mohd. Kaukab Azim Rizvi and another vs. Raj Kumar Srivas.”

3. Learned counsel for petitioners submitted that in case an unregistered sale deed is produced before the Court as surety, same should have been accepted and application 8-C filed to deposit the security in compliance of Section 17 of Provincial Small Causes Court Act, 1887 (hereinafter referred to as ‘Act, 1887’) along with application 4-C under Order 9 Rule 13 of Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) may not be rejected on this ground. Secondly, the photocopy of any document is secondary evidence as per Indian Evidence Act, 1872 (hereinafter referred to as ‘Act, 1872’) therefore, same cannot be rejected as surety. He next submitted that finding of the court below is that photocopy of the sale deed is not legible is also not correct as in fact the sale deed is very much legible, therefore, finding of Court below is bad. He assailed this finding before the Revisional Court, but the Court has also not returned any finding upon this ground. There is no compliance of Order 5 Rule 20 of CPC, therefore, Court may not proceed exparte without compliance of the provisions of CPC. In support of his contention, he has placed reliance upon the judgment of Apex Court as well as this Court in the matters of S. Kaladevi vs. V.R. Somasundaram & Ors.; 2010(3) JT 610 and Ishtiaq Hussain vs. Ashfaq Hussain (Civil Revision No. 132 of 1984), decided on 30.01.1985.

4. I have considered the submissions made by learned counsel for petitioners and perused the records as well as judgments relied upon.

5. Brief facts of the case is that earlier Suit No. 04 of 2011 was filed which was decided ex parte vide judgment and decree dated 05.09.2013. Upon that, petitioner has preferred application 4-C dated 31.07.2018 under Order 9 Rule 13 of CPC along with same dated application 8-C to deposit the security in compliance of Section 17 of Act, 1887. Court has rejected the said application on the ground that photocopy of the sale deed has been placed, which is not legible and registered. Against the said order, Revision No. 19/2019 was filed, which was also rejected vide order dated 21.02.2023 with specific finding that photocopy of the unregistered sale deed cannot be accepted as surety.

6. Order of Revisional Court has been challenged basically on the following grounds; first ground is that an unregistered sale deed cannot be rejected, secondly, photocopy of the sale deed is legible and it may also be accepted as surety as it is treated secondary evidence as per Act, 1872.

7. Now, issue before this Court is to decide as to whether photocopy of registered sale deed can be accepted as surety for the purpose of Section 17 of Act, 1887 read with Section 145 of CPC or not. For ready reference, Section 17 of Act, 1887 is quoted below:-

“17. Application of the Code of Civil Procedure-

(1) [The procedure prescribed in the Code of Civil Procedure, 1908 (5 of 1908), shall save in so far as is otherwise provided by that Code or by this Act,] be the procedure followed in a Court of Small Causes, in all suits cognizable by it and in all proceedings arising out of such suits:

Provided that an application for an order to set aside a decree passed ex parte or for a review of judgment shall, at any time of presen